[Senate Hearing 107-704]
[From the U.S. Government Publishing 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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81-998                             WASHINGTON : 2002
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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 did not provide the information. Although some 
information has been provided since the time of our FOIA request, the 
disclosures have been utterly inadequate, particularly because the 
information requested should be publicly available.
    Further legal action may well be necessary to secure the Justice 
Department's compliance with our FOIA request, especially in light of 
the Attorney General's new directive discouraging the release of 
information pursuant to FOIA requests. The memorandum also informs 
agencies that the Department of Justice will back up their decisions 
not to release information. On October 12, 2001, Attorney General 
Ashcroft issued a ``Memorandum for Heads of all Federal Departments and 
Agencies'' instructing them on how to respond to FOIA requests. ``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.'' Ashcroft established a 
``sound legal basis'' standard for complying with FOIA requests. This 
memorandum superseded a 1993 memorandum from Attorney General Janet 
Reno, which encouraged agencies to release information under the FOIA 
unless it was ``reasonably foreseeable that disclosure would be 
harmful.'' Reno's standard encouraged disclosure unless there was a 
reason not to, whereas Aschroft's discourages disclosure unless there 
is a sound legal basis to do so. The fact that the Attorney General has 
pledged DOJ resources to defend any FOIA challenges is a further 
indication of the degree to which this administration is discouraging 
an open government.
    The Attorney General's ongoing refusal to provide requested, 
important information about the detainees appears to reflect his 
general philosophy of withholding as much government information as 
possible, as set out in his October 12, 2001 memorandum, rather than 
any specific legal justification for withholding this particular 
government information. When questioned by members of the Senate 
Judiciary Committee at an oversight hearing on November 27, 2001, 
Assistant Attorney General Michael Chertoff said there was no legal 
reason why the names of all the detainees could not be released. Even 
though it could legally do so, the DOJ has not released the names of 
the detainees who have been charged with immigration violations. 
Assistant Attorney General Chertoff explained that the Attorney General 
wishes to protect the privacy of the detainees and does not wish to 
compile and release a list of detainees for fear that the list will get 
back to Osama bin Laden and he will learn what has happened to some of 
his ``sleepers.'' It is highly unlikely that bin Laden would not know 
if one of his soldiers was taken into custody. However, the slight 
possibility that such a list might provide bin Laden with some 
information is overridden by the much greater public interest in making 
sure that 1,200 people are not being held incommunicado.
    Significantly, the Attorney General's October 12, 2001 memorandum 
discouraging disclosure in response to the FOIA requests stresses the 
special importance of maintaining the confidentiality of any 
communications with attorneys. ``Congress and the courts have long 
recognized that certain legal privileges ensure candid and complete 
agency deliberations without fear that they will be made public. Other 
privileges ensure that lawyers' deliberations and communications are 
kept private. No leader can operate effectively without confidential 
advice and counsel.'' Ironically, the Attorney General appears to 
appreciate the need for private conversations with counsel on the part 
of the government itself, but not on the part of the individuals who 
are being detained and facing prosecution by the government.
New Authority for Attorney General to Hold People in Detention
    Adding to the concern about unfair detention is a new regulation 
that makes it easier for the government to detain non-citizens. This 
regulation was issued by the Attorney General on October 26 and went 
into effect on October 29. Like many post-September 11 regulations, it 
was put into effect under the administration's ``emergency rule-making 
authority'' that exempts the Attorney General from complying with the 
normal notice and comment period. The new rule allows the Immigration 
and Naturalization Service to set aside any release order issued by an 
immigration judge,\24\ simply because it disagrees with the immigration 
judge's determination, in cases where the agency says it believes that 
the non-citizen poses a danger to the community or is a flight risk. 
Previously, the immigration service needed to request a stay from the 
board of immigration appeals if it disagreed with an immigration 
judge's determination, except in limited circumstances where the 
individual had been convicted of certain crimes or accused of 
terrorism. Now, even for individuals who are merely accused of 
overstaying their visas, the hearing before the immigration judge is 
has been rendered meaningless because the decision whether to detain or 
release rests exclusively with the INS.
---------------------------------------------------------------------------
    \24\ An immigration judge is an administrative law judge employed 
by the Department of Justice to render independent decisions in 
immigration proceedings. IJ's cannot consider constitutional matters. 
Their decisions are subject to review by the Board of Immigration 
Appeals (BIA) decisions can be reversed by the Attorney General.
---------------------------------------------------------------------------
    In some cases, immigration detainees who have been ordered released 
on bond by an immigration judge (before the regulation changed) or who 
have been authorized to leave the country under an order of ``voluntary 
departure'' nonetheless remain in detention because they have not been 
``cleared'' by the FBI. Under these circumstances, the detention is 
solely the result of an FBI hold and not based on any immigration 
authority. We do not know the total number of cases in which such holds 
constitute the basis for ongoing detention.
    This new regulation expanding the government's power to detain non-
citizens raises some of the same constitutional concerns as the other 
new regulation discussed above, authorizing government monitoring of 
confidential attorney-client communications. Both reduce the 
traditional, essential role of judges to review executive action that 
limits individual rights and freedom--the Fifth Amendment right not to 
be deprived of liberty without due process of law, and the Sixth 
Amendment rights to counsel and access to the courts respectively. 
Judicial review is a critical lynchpin in our constitutional scheme of 
checks and balances, providing an important curb against executive 
abuses of power. In both cases, the government essentially takes a 
``trust-us'' stance, urging Congress and the public to trust the 
Justice Department not to abuse its newly claimed unilateral powers to 
override the attorney-client privilege and to hold non-citizens in 
custody. But one of the touchstones of democracy is a healthy distrust 
of government.
     The Questioning of 5,000 Men based on their Country of Origin
    Another area of concern, which has come to light in recent weeks, 
is the Attorney General's November 9, 2001 directive, directing the FBI 
and other law enforcement officials to conduct interviews of at least 
5,000 men, 18 to 33 years old, who have entered the U.S. on non-
immigrant visas in the past two years and come from countries where 
terrorist activities are known or believed to occur. The DOJ's list of 
the young men targeted for government questioning thus was compiled 
solely on the basis of national origin. The DOJ acknowledges that it 
has no basis for believing that any of the thousands of men on this 
list even has any knowledge relevant to the investigation, and it 
stresses that it has no basis for suspecting any of them of any 
involvement in any terrorist activities, or of any other criminal 
activity, or any violation of immigration laws. The DOJ apparently 
assumes that people fitting this profile would have information about 
terrorism.
    The ACLU recognizes the right--indeed the responsibility--of 
federal law enforcement to gather relevant information in the course of 
its investigation into the September 11 terrorist attacks. But 
discriminatory, dragnet profiling is neither an effective investigative 
technique nor a permissible substitute for the constitutional 
requirement of individualized suspicion of wrongdoing.
    To conduct the interviews, the Justice Department is relying on the 
assistance of ``Terrorism Task Forces'' set up in United States 
Attorney districts across the country. All the targeted persons 
received letters from their local United States attorney asking them to 
``voluntarily'' cooperate with the investigation. However, the wording 
of the letter implies that declining is not really an acceptable 
option. ``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.'' Most foreigners who receive this letter will 
feel that if they do not take part in the ``voluntary'' investigation, 
it will be detrimental to them.
    With hundreds of people already in jail for minor immigration 
violations, these interviews will understandably be seen as inherently 
coercive. This is especially true since the DOJ guidelines for 
conducting the interviews specifically instruct the interviewer not to 
inform the person of his Miranda rights, should that be a relevant 
consideration.
    In addition, all of the men targeted for interviews are non-
citizens who have entered the U.S. legally within the past two years, 
many of whom come from countries with repressive regimes. These men are 
unlikely to know or to believe that they may have a right to refuse to 
answer questions when the FBI or local law enforcement officials come 
knocking on their doors. They are likely to believe that any refusal to 
answer will make them suspects. In short, while the DOJ says that is 
seeking ``interviews,'' to the targets, they will likely feel more like 
interrogations.
    The DOJ guidelines for these question sessions go far beyond any 
legitimate quest for factual information, and instead are intrusive and 
intimidating. Officials who conduct the questioning are instructed to 
inquire into the political beliefs of the targeted young men, and to 
ask them to report on the political beliefs of their family and 
friends. These men will be asked, for example, whether they ``support'' 
any cause that terrorists espouse. That presumably includes Palestinian 
statehood, which the Bush Administration itself supports. A true 
response might trigger suspicion and further investigation. A false 
response would be a felony.
    Other categories of information to be sought under the DOJ 
guidelines are equally intrusive and intimidating and go far beyond 
information relevant to the September 11 investigation. For example, 
the law enforcement officials are instructed to ``obtain the telephone 
numbers used by the individual and his family and close associates.'' 
This heavy-handed tactic is an unwarranted invasion of privacy for 
people who are not even suspected of any wrongdoing. Compounding the 
intrusion is the fact that all the information collected is going to be 
stored in a searchable database maintained by the federal government.
    In ordering questioning into the political beliefs and associations 
of persons not known to have any connection whatsoever with the events 
of September 11, the DOJ directives go far beyond existing Justice 
Department antiterrorism guidelines. Those guidelines appropriately 
recognize government's obligation to carefully tailor its 
investigations so as to minimize inquiry into individuals' 
constitutionally protected beliefs and associations.
    Moreover, the guidelines call for questioning about and the review 
of documents concerning the target's immigration status, and the 
guidelines require the questioning officials to report any suspected 
immigration violations they uncover to the INS. These features compound 
the coercive context of the ``voluntary interviews.'' The questions to 
be posed suggest that the interviews are of people who may be suspected 
of wrongdoing, and are not as the DOJ asserts, merely designed to 
elicit information about other people.
    Because of the foregoing considerations, a growing number of local 
police departments around the country have raised objections to these 
dragnet interrogations as an exercise in ethnic profiling and an 
impermissible intrusion into matters concerning personal beliefs and 
associations. These local police departments, accordingly, are refusing 
to participate in the interviewing program. These departments include: 
San Francisco and San Jose in California; Detroit, Michigan; Hillsboro, 
Corvallis and Portland, Oregon; and Austin and Richardson in Texas.
    At the same time that the Justice Department is conducting the 
``voluntary interviews,'' last week Attorney General Ashcroft announced 
a ``Responsible Cooperators Program,'' asserting that the government 
would help non-citizens with their visas in exchange for providing 
information the government determines to be useful to its 
investigation. But this latest move is more suggestive of a sting 
operation than a serious, good-faith effort to collect important 
information in the ongoing terrorism investigation. The Attorney 
General's vague promises are completely inconsistent with the specific 
threat of arrest and detention for any minor visa violation expressly 
set forth in the existing INS memo governing this investigation. The 
Attorney General's vague promises are also completely inconsistent with 
the DOJ's actual actions since September 11, of arresting and detaining 
hundreds of people on minor immigration violations.
    The Attorney General's public statements suggest that those 
immigrants who come forward will not be arrested. However, the Attorney 
General's memorandum governing the conduct of the questioning 
specifically instructs the law enforcement officials who are doing the 
questioning to contact the nearest INS official if they have suspicions 
about someone's immigration status, and the memorandum also expressly 
contemplates the detention of individuals who are suspected of 
immigration violations. The memorandum states: ``[I]f you suspect that 
a particular individual may be in violation of the federal immigration 
laws, you should call the INS representative on your Anti-Terrorism 
Task Force or the INS officials at the closest Law Enforcement Support 
Center. Those officials will advise you whether the individual is in 
violation of the immigration laws and whether he should be detained.''
    The guidelines, if followed, are bound to produce resentment 
against law enforcement rather than cooperation, just as racial 
profiling has done in the past. This undermines the hard work done by 
many local law enforcement agencies to establish positive and 
cooperative relationships with targeted communities, including Muslim 
and Arab communities. This resentment is already surfacing. The 
American-Arab Anti-Discrimination Committee (ADC) issued a statement on 
November 28 objecting the Responsible Cooperators Program. A portion of 
their statement reads:

        ADC believes that this approach will be ineffective and ripe 
        for abuse. First and foremost, programs that offer an easy 
        pathway to citizenship are inherently prone to fraud and abuse 
        for personal gain. Second, had Mr. Ashcroft consulted with 
        anyone familiar with the Arabic language, he would have known 
        that the word ``cooperator'' has an extremely negative 
        connotation that may deter many from participating in a program 
        such as this. The use of this term is apt to solicit the same 
        Arab reaction as that generated by the unfortunate use of the 
        term ``crusade'' by President Bush after the September 11 
        attacks.\25\

    \25\ ADC Press Release: ``ADC Extremely Concerned by Ashcroft's 
Latest Plan'', November 28, 2001.
---------------------------------------------------------------------------
    The statement ends with a quote by ADC Vice President Khalil E. 
Jahshan predicting that the program will be unsuccessful because the 
trust has eroded between the government and the Arab community. ``The 
trust between the U.S. government, including law enforcement agencies, 
and the Arab community has been eroded over the past few weeks by 
denial of due process, by revoking of attorney client privileges, by 
arbitrary and extended detention, and by casting the investigative net 
so broadly as to implicate thousands of innocent people.''
    The Attorney General holds all the cards; it is completely in his 
discretion to detain and deport or to grant a reprieve. Who would 
voluntarily come forward under these conditions, especially since the 
Justice Department already has detained hundreds of people based on 
minor visa violations? If the Justice Department is serious about 
encouraging immigrants to come forward voluntarily, the Attorney 
General should withdraw the part of the memorandum calling on law 
enforcement officers conducting terrorism-related interviews to report 
minor visa violations to the INS, and make a specific, written 
enforceable promise not deport those who offer information.
                               Conclusion
    The Justice Department's recent actions, violating cherished rights 
and freedoms, have antecedents stretch back to the earliest days of the 
Republic. The Alien and Sedition Act of 1798, criminal restrictions on 
speech during World War I, the internment of Japanese-Ameicans 
following the attack on Pearl Harbor, and the blacklists and domestic 
spying of the Cold War are all instances in which the government was 
granted (or assumed) summary powers in a moment of crisis, to the 
inevitable regret of later generations. The diminution of liberty that 
accompanied these episodes was later understood as an overreaction to 
frightening circumstances; each is now viewed as a shameful passage in 
the nation's history. After the immediate danger passed, it was 
recognized that the government had already possessed ample powers to 
address the threats at hand, making the new tools unnecessary at best 
and dangerous at worst.
    We welcome the many statements that Attorney General Ashcroft and 
other U.S. officials have made since September 11, promising to uphold 
the Constitution and to protect civil liberties, while pursuing the 
anti-terrorism campaign. Unfortunately, the Attorney General's actions 
belie his rhetoric. Our democracy is in real danger if any one branch 
of the government becomes too powerful. From establishing military 
tribunals without Congressional approval, to expanding wiretapping 
authority while limiting judicial oversight, this Administration is 
demonstrating its disregard for the other two branches of government. 
The Constitution's delicate balance of powers is becoming dangerously 
title toward an excess of Executive Branch power.
    We are heartened that the Senate is taking the lead in reclaiming 
the Congressional role of overseeing the U.S. government's expansive, 
intrusive new police powers and tactics, and we hope this will be an 
ongoing practice. While the Administration and the public are 
understandably focused on waging war against terrorism, we ask Congress 
to ensure that the war on terrorism does not become a war on democracy.

    Senator Feingold. Thank you very much for your testimony. I 
thought the testimony was excellent from the entire panel, and 
now we will begin the first of 5-minute question rounds.
    I will start with Mr. Al-Maqtari. As you know, and as Ms. 
Strossen was just illustrating, Chairman Leahy, and Senator 
Kennedy and I have been pressing the administration to provide 
us with basic information about who was being detained and why. 
The administration has turned over some information, but it 
still has not provided us with anything near a full picture of 
who is being detained and why. In response, Attorney General 
Ashcroft and others in the administration have said that they 
need not provide us with a complete picture because individuals 
who have been detained can self-identify. In other words, he is 
saying the detainees are free to call up this Committee or 
their member of Congress and tell them that they have been 
detained.
    Could you tell this Committee about the conditions in which 
you were held, including the conditions for communicating with 
the outside world. How many calls a day were you allowed to 
make to your lawyer and how many calls were you allowed to make 
each day to your wife and to your family members?
    Mr. Al-Maqtari. Thank you. I have been held because my visa 
has been expired, and my marriage application did not finish 
yet. I could not talk with the outside world. I did not have 
any contact with the outside world. Sometimes I did not know 
what time it is, 3:30 or 2 o'clock. So sometimes I pray at what 
I suppose to pray, 3:30, I pray at 5:30 because I do not know 
what time is it.
    For the calls, I have, first of all, the first 2 weeks I 
was in general population with other inmates, so I could use a 
collect call many times, but after that, they changed my place 
to the segregation unit, where I was held for 23 hours a day. I 
have 1 hour, if I want to go out to break. I had 15-minute call 
every week.
    Senator Feingold. A 15-minute call every week; is that what 
you said?
    Mr. Al-Maqtari. This call, you use for one person, which 
was your wife, your family, your lawyer. Once you complete this 
call, you have to wait another--to the next week. This call you 
have to apply, you have to request this call. If you do not 
request, you do not have this chance to make call. So every day 
or every week you have to request phone request sheet and you 
write the request, ``I would like to make a call,'' and you 
have to identify or specify which one you want to call. If you 
say, ``I want to call my wife,'' you cannot call your lawyer 
because this call has been approved for your wife.
    So it was a little bit complicated. I could not reach my 
wife. I did not see her since September 15th, when I was 
arrested. One time I saw her in court, my first hearing. 
Because of that I asked my lawyer to call me because I could 
not reach him every day because sometimes he wanted me to 
answer some questions or to tell him about some documents he 
wants me to bring them from Yemen or from my family or from my 
wife. So call was very difficult.
    Even visitation, you have 1-day visitation, Friday, for 1 
hour or 2 hours, and this visitation is no contact. That means 
there is a glass between you and the person who visits you, and 
you talk to her by phone.
    Senator Feingold. Mr. Al-Maqtari, it seems to me that your 
coming forward and making your identity known has had a 
beneficial effect on your case. The public can now see the 
unjust way in which you were treated and know you were moved 
from your family and your home without cause. Would you agree 
that lifting the veil of secrecy helps allay the fears and 
suspicions of neighbors or friends or coworkers who wondered 
why you were being held by Federal law-enforcement officials 
for almost 2 months. And the reason we are asking this, I 
believe the Attorney General has suggested it is sort of to 
your benefit and the benefit of people being detained to not 
have that information out there.
    Mr. Al-Maqtari. I am sorry. My English is not that good. 
So, if there is another way to facilitate this question or--
    Senator Feingold. Mr. Boyle, would you like to respond? 
Your representative can respond.
    Mr. Boyle. Sure. I mean, there is no question in our case 
it made a tremendous difference. We were hung up for weeks. The 
Government had all of the documents that proved his full life 
history, that there were no gaps, that he had been at school in 
France, that he had been teaching. We could not get anyone to 
release them. Once press people started making inquiries, all 
of a sudden the analysis of his computer hard drive that had 
been unable to be done in 2 months got done, and a week later 
the INS came into court and said that the FBI had cleared him.
    So I think having, and we were very frustrated up to that 
point, with the secret hearings, the no names. The first couple 
of weeks we had no access to him. So I think there is no 
question that an open process, where the names are out there, 
where you have the normal access to find out where people are 
held and where the hearings are and what they are charged with, 
I think that would be very positive for the people who are 
held.
    Senator Feingold. Thank you, Mr. Boyle.
    We will turn now to Senator Sessions for his first round.
    Senator Sessions. Thank you, Mr. Chairman.
    Our Nation has gone through a most devastating attack. It 
has shaken the country in many ways and cost the lives of 
thousands of innocent American citizens, and I believe it is 
appropriate that the country act vigorously to defend its 
freedoms, but at the same time, I think it is appropriate that 
we adhere to our established rules wherever we possibly can and 
certainly not violate our constitutional protections that are 
significant.
    Mr. Boyle, I missed your earlier testimony. When we talk 
about secrecy, were you, you were free to tell anyone about 
your client's incarceration, were you not?
    Mr. Boyle. That is right, Senator.
    Senator Sessions. Nobody told you to keep it secret or 
anything of that nature.
    Mr. Boyle. Absolutely not.
    Senator Sessions. And his family, whom he was able to 
contact, was not told such.
    Mr. Boyle. Well, he was not able to contact his wife, but, 
yes, there was no limitation, and ultimately she was able to 
speak about his case.
    Senator Sessions. And with regard to any hearings that were 
held, were those closed hearings or was it handled--
    Mr. Boyle. Yes, they were closed. We were not allowed--
    Senator Sessions. That was different than you would 
normally have in an Immigration hearing?
    Mr. Boyle. Yes.
    Senator Sessions. So the hearings, could family members 
attend the hearing, if you know?
    Mr. Boyle. The regulation, it is not a regulation, it is a 
letter from the chief Immigration judge, it does bar family 
members. In our case, his wife was brought in briefly because 
she testified for an hour. But under this new, it is not a 
regulation, it is simply some kind of policy letter at the 
Attorney General's direction, family members are not allowed 
into court.
    Senator Sessions. Part of the Immigration law procedure?
    Mr. Boyle. The normal regulation has certain limitations.
    Senator Sessions. A new reg?
    Mr. Boyle. Right, this is not a reg. It is a policy memo. 
It was not public until about a week ago, but it has been made 
public now, one way or another, and it does bar family members.
    Senator Sessions. To your knowledge, anybody that is under 
arrest now could write a letter to the New York Times or Ms. 
Strossen or anyone they wanted to, to express concern about 
their incarceration?
    Mr. Boyle. Sure. If you knew about it, absolutely.
    Senator Sessions. I think, when we talk about secrecy, we 
need to get straight here what we are talking about. The 
freedom to communicate has not been totally lifted, although 
those in jail have historically had their freedoms restricted 
in any number of different ways.
    Mr. Goldstein. Yes, Senator?
    Senator Sessions. --with regard to your client, he was held 
for 4 days, you say, before he was released? How many days?
    Mr. Goldstein. He was actually picked up on September 12th. 
He was released on September 24th. So it was almost 2 weeks.
    Senator Sessions. And you said 4 days occurred before you 
were called or you used a figure of 4 days, I wrote--
    Mr. Goldstein. No, we were actually called on the 12th. For 
4 days, we attempted to locate our client through letters and 
telephone calls to INS agents, to the supervisor, to attorneys 
with the Litigation Section, to the Department of Justice, to 
the assistant assigned to the case to no avail.
    We did not learn that our client had been moved to 
Manhattan until the 17th, which was, I believe, 5 days after he 
had been arrested, and at that point we were denied access to 
him until 2 days thereafter, on the 19th of September.
    Senator Sessions. So he was arrested a day or two after the 
attack.
    Mr. Goldstein. He was arrested at 5 a.m. the morning after 
the attack, and no doubt every American, including myself, was 
shocked and outraged at what had happened.
    Senator Sessions. I guess, were you given any reason that 
you could say or maybe not say as to why they thought this 
doctor, out of all of the other people in America, would be one 
to be detained?
    Mr. Goldstein. Not until September 18th, some 6 days after 
he was apprehended. Those reasons are part of an affidavit, 
which is sealed and made a part of the secret proceedings.
    Senator Sessions. But they apparently had some basis, they 
thought, to make the arrest.
    Mr. Goldstein. I can tell you that there were published 
accounts of one of the reasons was that he had made a $21-
purchase at a location known as the White House in Washington, 
D.C. It turned out to be a food cluster, and he was buying food 
for his family at a time when he was at Georgetown University 
Medical Center studying, on leave from the University of Texas.
    One of the concerns I had was we had documentation that 
could have allayed any of those fears, and yet what happened 
was the investigating agents were deprived of the very 
information that would have relieved them from this course and 
allowed us to use those precious resources to go after the real 
bad guys at a time when we could ill afford to waste them.
    Senator Sessions. Well, I assume there are other reasons 
which are under seal--
    Mr. Goldstein. There are.
    Senator Sessions. --part of the Grand Jury and that sort of 
thing, but I guess--
    Mr. Goldstein. But not only would I have been able to 
explain them quicker and did we have documentation to explain 
them, the FBI satisfied themselves once it got to that point 
and there was a lawyer, but it was 2 weeks later, and I think 
we could have had a better use of our resources and time. It is 
an example of why having a lawyer is not only good for the 
client, but good for the system as well.
    Senator Sessions. Well, I think lawyers are good for the 
client and the system, and I agree with you on that, and I do 
not think it is justified to deny that long you being able to 
see your client, and I think that was a violation, Mr. 
Chairman. But I guess the only explanation we can say is that 
sometimes errors occur, and in the stress of this moment, 
probably more errors probably would occur than normal, and I do 
not think that is an unjustified procedure.
    But for the most part, Ms. Toensing, the people that are 
held, as you understand it, those people are held on criminal 
charges; is that right? You have been in the Department of 
Justice.
    Ms. Toensing. I believe 55 of them are on criminal charges.
    Senator Sessions. Criminal or immigration charges.
    Ms. Toensing. About 500 are on immigration charges.
    Senator Sessions. And there are procedures for detention 
under those laws, if you are an illegal immigrant, is it not?
    Ms. Toensing. There are. I agree--this whole panel agrees. 
We are all lawyers, I guess, except for poor Steve there--that 
lawyers are important to the system. And if there are problems 
there, the Justice Department should correct them, as far as 
seeing to it. I do think the system is better if the lawyer is 
there and is able to make it more efficient to get evidence and 
documents that clear people.
    In the case of the criminal detainees that are charged with 
a criminal offense, taxpayers pay for the lawyer to be 
appointed, and that is a good system.
    Senator Sessions. Well, it is troubling that the system 
does not work perfectly. It ought to work perfectly, and every 
person is entitled to certain rights, and I am troubled that 
that is not occurring. It did not occur, at least, Mr. 
Goldstein in yours, and perhaps, Mr. Boyle, in yours.
    Ms. Toensing. Do you think, perhaps, in those 2 weeks that 
maybe the system is working better now, rather than just in 
those--
    Senator Feingold. I am going to have to--
    Senator Sessions. That is what I was going to say, Mr. 
Chairman, that I hope that that is improving itself, number 
one, and I hope that we are also not ignoring potential 
dangers. The law-enforcement officers have great, great, 
difficult choices. They have got people that could be 
potentially be very dangerous, and they have to sometimes make 
decisions very quickly.
    Thank you.
    Senator Feingold. I want to thank Senator Sessions for the 
tone of his remarks and his candor with regard to this 
incident. I would simply say that it is simply not a question 
of 2 weeks. Mr. Al-Maqtari's story involves 2 months, and I 
think we need to keep that in mind.
    I will start another round.
    Senator Sessions. With regard to that, was that detention 
as a result of being illegal, not having a legal status here or 
as a result of some charge?
    Senator Feingold. If you would like to answer, Mr. Boyle.
    Mr. Boyle. If I may. Yes, the only charge against him was 
that his tourist visa had run out, and his marriage application 
was pending. That is a technical violation. We withdrew it in 
the interest of honesty because he no longer had the intention 
to be a tourist. He had validly filed an extension, but you are 
supposed to withdraw it when you no longer have the intention.
    Normally--
    Senator Sessions. He was technically in violation.
    Mr. Boyle. Oh, that is right. There is no question he was 
in violation. What is different--
    Senator Sessions. He was, therefore, detainable; is that 
correct?
    Mr. Boyle. He was detainable. You would never be detained 
normally or maybe you would get a $1,500 bond. You would never 
get a $50,000 bond. You would never be held for 2 months 
without bond.
    Senator Feingold. Thank you, Mr. Boyle.
    Yes, in light of the comment of Ms. Toensing that, for the 
first couple of weeks, it was tough and confusing, this kind of 
thing seems very hard to justify over the course of 2 months, 
given the fact, as Mr. Boyle points out, that this certainly 
never would have been done prior to September 11th.
    Let us start another round, if we could.
    Mr. Boyle, you said something in your testimony that I 
would like to have you and Mr. Goldstein amplify a bit. You 
said having a right to counsel is meaningless unless those in 
prison in our Immigration system are made aware of their rights 
and given the opportunity to actually exercise the right in a 
timely fashion.
    When Mr. Chertoff was here last week, he was emphatic 
that--and I am quoting him here--that ``Every one of these 
individuals has a right to counsel. Every person detained has 
the right to make phone calls to families and attorneys.''
    Would you comment on what your experience with representing 
detainees has told you about the truth of these statements and 
whether, in practice, you think the Department of Justice is 
living up to Mr. Chertoff's description of the situation, and 
if, as I suspect, you believe the Department might have fallen 
short in this area, what can we do to rectify the situation? 
Recognizing that people in deportation proceedings do not have 
a right to appointed counsel at the Government's expense, what 
should the Department do to make sure that the right to counsel 
is not rendered meaningless?
    Mr. Boyle. In our case, there were problems. He was held 
completely without the ability to make calls for about 4 days, 
and interrogated extensively. He was arrested with a warrant 
that was prepared improperly and signed by a low-level 
deportation officer instead of the correct officer. He was 
given a Notice to Appear, the charging document, which was also 
unlawfully signed by a low-level officer instead of the 
appropriate officer.
    I have gotten many calls from other immigration attorneys 
that people are not getting the appropriate warnings that were 
talked about before, to be able to talk to your lawyer, to be 
able to have the consulate of your country called. I think, 
when you set a climate where you say do not worry about the 
information requests, where every regulation is in the other 
direction of holding people without any rights, you create a 
climate where it is better to cut the corners than to treat 
people correctly.
    And while I absolutely understand the importance of this 
investigation, I think we have to be careful about, especially 
when we are netting in hundreds of people, this is not finely 
targeted for, you know, heavy-duty suspects, we have got to be 
very careful about the climate we create.
    I do think the Justice Department knows about civil rights 
and could do it, and I think it is important to place a premium 
on people's rights, as well as on bringing people into custody.
    Senator Feingold. Thank you, Mr. Boyle. What do you think 
of the statements by Mr. Chertoff and the Attorney General that 
the people in detention on immigration charges are free to 
self-identify, that nothing prevents them from making their 
detention public, even though the Department will not release 
that information because they say it would help the terrorists?
    Mr. Boyle. Again, I think it is a real problem. If people 
cannot get in contact with their lawyers and their families, 
how are they going to know who to call and where to call at the 
newspaper or at this Committee? I just think it is not a real 
alternative. I think it would be better to have a normal, real, 
functioning court system, where not only can those people self-
identify, but where the country can satisfy itself, as we do 
every day, with how well our judicial system works. I do not 
think, except in the most critical cases, and then, yes, there 
are procedures for closing hearings, and if both parties want 
to close a hearing, I think that is perfectly legitimate. In 
cases like asylum cases, battered spouse cases, cases of people 
who are informing for the Government, I think there are cases 
where it is perfectly appropriate, but there needs to be input 
from both sides, as there was normally.
    I think, except in the strictest national security 
questions, and teenagers from Israel or someone like Mr. Al-
Maqtari, this is being invoked left and right. It is being 
invoked for hundreds of cases. There is a huge disconnect from 
the 10 or 15 who have any al Qaeda connection. I think we have 
got to bring things more back into focus and preserve our heavy 
weapons for the heavy cases and not completely alienate the 
communities where we need the leads and we need the information 
by coming down like a ton of bricks on people who really are 
innocent people who just got in the way.
    Senator Feingold. I would like to follow that by just 
making a couple of remarks about the difficulty I am having 
with trying to understand the Attorney General's arguments in 
this area. I would like to just say that I find the idea that 
detainees can self-identify almost laughable, given the 
testimony that we have heard today about the conditions of 
detention and the restrictions that are at least sometimes put 
on the communications of the detainees with the outside world.
    Mr. Chertoff stated emphatically, ``Let me emphasize there 
is nothing to prevent any of these individuals from identifying 
themselves publicly or communicating with the public.'' But 
this statement, and here is where I cannot follow the logic, 
entirely undercuts the argument that releasing the names 
publicly might actually help Osama bin Laden by letting him 
know that some of his sleepers are in custody.
    If you just think about it, if the Department were really 
concerned about that, it would be taking steps to prevent these 
individuals from communicating with the outside world. It would 
not say, well, the sleepers can identify themselves and nothing 
prevents that, but we are just not going to do their work for 
them maybe because they are too dumb or embarrassed to inform 
their handlers that they have been taken into custody.
    A week ago the administration argued that it was prohibited 
by law from releasing that information, as Ms. Strossen was 
pointing out, that it did not want to help Mr. bin Laden by 
doing so and that it wanted to protect the privacy of the 
detainees.
    As we have already found out again, today, Mr. Chertoff 
admitted that the first reason was simply invalid last week; 
the second reason is simply fanciful, given the 
administration's willingness to allow these detainees to self-
identify. I think we have heard today both the protection of 
privacy rationale is extremely weak and that there is ample 
justification for concern about the conditions under which 
people are being held to justify overriding those concerns, to 
the extent that they exist.
    I still believe, even more strongly than when I first tried 
to get this information, the public and the Congress has a 
right to this information. And so once again I call on the 
administration to answer the questions we asked in our October 
31st letter about people who have been detained on immigration 
charges.
    Senator Sessions, it is your turn.

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

    Senator Sessions. Well, Mr. Chairman, with all due respect, 
I do not think it is laughable to say that self-identification 
is not meaningful. All of these people, to my knowledge, have 
lawyers, and most of them promptly, unlike Mr. Goldstein's 
circumstance, and they can make public. Their family knows they 
are there. Maybe they do not want bin Laden's group to know 
they are there. Maybe they are cooperating with the Government. 
This is a serious matter.
    We do not know, with absolute certainty, who is a terrorist 
and who is not. Lawyers, investigators, Immigration officials, 
FBI agents, they are struggling with some very serious matters. 
If they miss the person who is on the way to carry out a major 
bombing attack, what kind of feeling are they going to have 
then, that they had the person and they let them go or they did 
not pursue the matter effectively.
    So I believe that we need to adhere to the rule of law. I 
believe that we need to do what is required by the 
Constitution, but I am not aware that the Constitution or the 
statute of the United States requires the Attorney General to 
tell the names in one time of everybody he has arrested on 
immigration charges.
    Ms. Toensing, have you ever heard of the Attorney General 
listing in bulk hundreds of names of people that are arrested 
for individual, separate criminal or immigration charges?
    Ms. Toensing. No.
    Senator Sessions. I just do not know--it seems like to me 
that is what is being called for here, and it would have some 
possible adverse consequences to the security of the United 
States and to ongoing investigations.
    What I think, Mr. Chairman, you are correct on is the 
holding the Department of Justice and our Immigration systems' 
feet to the fire on properly disposing of cases, promptly 
finding out with whom we have legitimate evidentiary problems 
or facts exist that raise serious questions, and releasing 
those for whom there is no basis to hold them.
    Mr. Emerson, I know it was a bit unusual to have your film 
shown here, but I think it does provide context for the 
circumstances we are under, and I would just note that back in 
November, all of the Senators received a letter from their 
colleagues, Ron Wyden and Sam Brownback, who had studied your 
documentary. They said, among other things, ``The documentary 
makes clear, and we would reiterate, that the majority of 
Muslims in the United States do not support terrorist 
activities and that Islam, as a faith, condemns acts of 
terrorism. It made clear that Islamic extremists who promote 
and carry out their form of Jihad are as great a threat to 
moderate Muslims as they are to Christians, Jews and all 
American citizens.''
    So I think that is a good compliment to the objectivity of 
your film.
    Mr. Emerson. Senator, if I might just add something.
    Senator Sessions. Yes, go ahead.
    Mr. Emerson. That I just want to reemphasize what you just 
stated, that the film itself emphasized that the issue was not 
of Islam, but rather of Islamic militants. I think, as somebody 
who has investigated the 9/11 attack, if you will permit me 
just to provide a little context for understanding the degree 
of unprecedented danger and the degree to which U.S. law 
enforcement was unprepared to deal with 9/11. Because sleeper 
cells and those who are arrested after 9/11 were not 
arbitrarily selected because of the alphabet.
    There was a belief somehow they were connected, either they 
were on credit card applications, they were the recipients of 
telephone calls, there was some reason why they were picked up. 
It was not just an arbitrary decision because of somebody's 
fanciful whims. The problem was that most of the hijackers from 
9/11 maintained an operational security that was unprecedented; 
in other words, they did not call each other. The phone calls 
that were made, in fact--
    Senator Sessions. They had only minimal contact between 
each other.
    Mr. Emerson. --between each other, so it was impossible to 
prove--
    Senator Sessions. To make it more difficult to investigate.
    Mr. Emerson. In fact, one of the reasons why we now know 
today who the hijackers were on the plane was because of a 
stewardess's call on one of the planes identifying the 
hijackers and the seats that they had, and that then led the 
investigators to unravel the network. And a lot of people were 
picked up because of the fact that there was some connection, 
even though it may be later proved that it was not as solid, 
but most of these--Hani Hanjour came here in 1991. These people 
buried themselves into the American society. They never did 
anything illegal. Mohamed Atta, the ringleader, he was caught 
for speeding. He was given a summons for speeding. But, you 
know, if he had been arrested, what good? He could not have 
been held, and he was the ringleader of the whole plot that 
killed 4,000 people.
    So I believe that this is the setting that we are now 
facing. It is a new ballgame. I am not here to justify abuses 
of the system at all, but I am here to tell you that having 
investigated 9/11, working with investigators in law 
enforcement and understanding the pressures, and understanding 
the dilemma they faced, it was absolutely a magnitude that they 
had never faced before, precisely because these people learned 
from previous terrorist attacks not to have any connection with 
one another, to keep a low profile, not to stand out.
    Therefore, even if you look at the 21st hijacker, Moussaoui 
from Minnesota, the odds are people know or believe, in law 
enforcement, that he most likely was going to be on a fifth 
plane. Nobody can prove this. The hijackers were not 4 for 4 on 
9/11. They were more like 4 for 6, 4 for 7. Now can anyone 
prove this? Absolutely not, at this point. Do they believe it? 
Absolutely. That means there may be 30, 40, 50 other hijackers 
out there in American society that have not been apprehended or 
that were picked up in this group and that are being forcibly 
held. And one good byproduct, even though there are bad 
byproducts, is that they cannot carry out a terrorist attack 
now.
    Senator Feingold. We will start another round.
    Senator Sessions. Mr. Chairman, I would just offer this 
letter from Senators Wyden and Brownback on film.
    Senator Feingold. Without objection.
    Senator Sessions. And would note that three of the 
hijackers were, in fact, student overstays--people who came 
legitimately as a student, but had overstayed their stay.
    Senator Feingold. Thank you, Senator Sessions. We will 
start another round.
    I certainly understand the argument that this is a new ball 
game, and I understand sort of the basis for this raft of 
rather unusual proposals from the administration. But the 
problem I have is first we have to determine whether the 
arguments that are being made about the system prior to 
September 11th and the current law are even valid. There is a 
sort of mixing and matching going on here. As Ms. Strossen 
pointed out, the Attorney General simply asserted that he was 
required by law not to give out the information. That is simply 
not true. And I don't really understand why that was asserted.
    The same goes for this obvious contradiction with the 
Attorney General saying on one day that he couldn't release any 
names because it would help Mr. bin Laden, but that everybody 
was free to release their own identities. It doesn't add up.
    And so these aren't statements that are insensitive to the 
new world we live in because the arguments are based on what 
the current law was and the practice has been as a foundation 
for justifying these new changes. So that concerns me.
    In that spirit, I would like to follow up with regard to 
what Senator Sessions said with Mr. Goldstein and Mr. Boyle. 
Aren't immigration charges generally public, Mr. Boyle?
    Mr. Boyle. Yes. They are read in open court. They are 
available. All the names and the alien numbers are posted on 
the wall of the immigration court ever morning, and you can 
dial into an 800-number system.
    Senator Feingold. And so the hearings are listed in the 
courthouse?
    Mr. Boyle. That is right.
    Senator Feingold. And, Mr. Goldstein, would you agree with 
that?
    Mr. Goldstein. I would.
    Senator Feingold. And let me ask each of you, so what we 
are asking for here is not unusual at all, is it? What we have 
asked for in our letters--
    Mr. Boyle. Normally it is open. Normally the hearings are 
open.
    Senator Feingold. Is that correct?
    Mr. Goldstein. Not only are the hearings open, but the idea 
that someone who has retained counsel, who is constantly 
communicating with both agents and Department of Justice 
officials, seeking the whereabouts of their counsel and an 
opportunity to consult with them, that goes beyond whether 
something is secret or non-secret. It simply defies logic or 
common sense that this simply slipped through the cracks, that 
these were terrible--no question they were terrible times, and 
I understand that they often require extraordinary remedies. 
But the point is all of us understand that providing counsel 
would have been a benefit to everyone, and yet we were 
stonewalled from the get-go for a considerable period of time, 
which to me in my experience in this one case looked like an 
orchestrated effort that was a--there was a commonality to it. 
Each of the agents, each of the agencies and the U.S. Attorneys 
all told us that they would be unable to tell us where our 
client was or why he was being held, even though everyone now 
knows they had that knowledge at their fingertips.
    Ms. Strossen. Could I add something, Senator Feingold?
    Senator Feingold. Yes, Ms. Strossen.
    Ms. Strossen. Because our Immigration Rights Project 
lawyers and those that they work with around the country are 
reporting similar problems. And in the earlier round of 
questions, you asked what steps could be suggested to 
facilitate access to counsel, to which Senator Sessions agreed. 
I guess we are all lawyers. We all support the rule of law and 
the positive value of having access to lawyers. And in the 
ACLU's written testimony, we do affirmatively suggest that the 
Justice Department can and should take steps to make sure that 
pro bono attorneys and legal organizations such as the ACLU 
which are willing to counsel these individuals free of charge 
be given access, and that it be the responsibility of the 
Justice Department to make sure that at all these scattered 
facilities where these individuals are being held that these 
obstacles are removed.
    Senator Feingold. Thank you, Ms. Strossen.
    Mr. Boyle, we do not yet know the identities of the people 
who are being detained on immigration charges, although from 
the information that has been released, we can be pretty sure 
that the vast majority are being held on minor immigration 
violations, such as overstaying their visas, and that there is 
no evidence that more than a small number of these detainees 
have any connection with any terrorist organization or any 
knowledge about terrorist activities or the September 11th 
attack.
    Now, the Attorney General has often defended these 
detentions by pointing out that these people violated the 
immigration laws of the United States. Your client, Mr. Al-
Maqtari, was charged with overstaying a tourist visa, as we 
have discussed.
    Can you tell me--and, again, getting at the practice at 
least prior to September 11th--what happened when someone was 
discovered to have overstayed their visa or committed some 
other minor immigration violation? Were they always deported? 
Can you explain the gravity of these violations, how they can 
be corrected, and whether you agree with the administration's 
position that someone who violates the law should not remain in 
the United States?
    Mr. Boyle. Before September 11th and in non-Arab cases now, 
there is still a lot more discretion, and particularly in terms 
of detention. Non-criminals were almost never and are almost 
never, outside of these communities, detained. They are almost 
always released on their own recognizance or with a very low 
bond. And the administration did--and I hope will in the 
future--exercise more discretion about whether people would 
actually be charged based on a variety of factors about their 
circumstances, whether relief might be available in the future 
if they are married to a permanent resident and that 
application is on a waiting list and will ripen.
    There certainly was a lot of discretion, and it was 
exercised far more freely and is exercised far more freely 
outside of the communities that seem to be being targeted now.
    Senator Feingold. Senator Sessions?
    Senator Sessions. With regard to the 5,000 people that have 
supposedly been requested--or are being requested for 
interviews, I don't consider that a round-up. I don't consider 
that a detention. I don't consider that a violation of their 
rights. They are simply asked by letter or in person, 
presumably, would they be willing to talk about information 
that might be pertinent to their circumstances. According to 
the New York Times article, I guess today, reporting from 
Detroit on interviews that occurred, ``Two people who attended 
a half-dozen interviews today said the conversations were 
professional, non-threatening and surprisingly short.'' They 
were asked a number of questions, such as: Are you aware of 
people who were celebrating? They were asked if they were aware 
of a terrorist group or if they knew of anybody who was 
planning anything. They were asked if they had ever been part 
of the armed conflict in their country, and questions of that 
sort.
    So it seems to me that if you have got an attack coming at 
this country from Liechtenstein, you would want to interview 
people who had come from Liechtenstein. If we have got people 
who are coming from a series of countries, as we do in this 
circumstance, for the most part, then those are good people to 
interview. And maybe their very families have been victims of 
oppression. Maybe their very families fled to the United States 
because of some fundamentalist oppression that they served in 
their country. Maybe they left because women were mistreated in 
their country and they know some things. And somebody calls and 
asks them about it, and maybe they say, I can tell you this guy 
down the street here has been into this stuff big-time heavy, I 
would look at him if I were you.
    Now, what is wrong with asking somebody if they have any 
such information as that? And there is no allegation or 
contention that they could not refuse to answer.
    And, Nadine, with all due respect, they are not entitled to 
Miranda warnings and should not be given them. They are not 
being brought into custody--
    Ms. Strossen. I didn't say that they were--
    Senator Sessions. Well, you said they were instructed not 
to give Miranda warnings, and well they should not have been 
given Miranda because Miranda is not required to interview 
somebody in a voluntary interview.
    So I think this big deal has been exaggerated beyond the 
level of importance given to it, and we might hope in these 
interviews that we might come up with a bit of information here 
or there that could save somebody's liberty or life in this 
country in a way that would be consistent with all our laws. 
And certainly I would think it would be.
    So you agree that they don't have to give Miranda warnings? 
Well, why did you make such a big deal about it?
    Ms. Strossen. I think what is noteworthy, if I may answer, 
Senator Sessions, is that there was an affirmative effort to 
instruct in the guidelines that the Miranda warning need not be 
given. There was also an absence of an affirmative instruction 
to inform these individuals that they had a right not to answer 
particular questions and that they had a right to seek counsel.
    So we think that there was an effort to take maximum 
advantage of people's ignorance of their legal rights, and, you 
know, if I may say so, the Michigan interviews were different 
from those that are taking place consistent with the Justice 
Department's guidelines. According to the New York Times 
article I read recently, the local police there decided not to 
follow the Justice Department's form letter precisely because 
they thought the tone was too coercive, and, therefore, not 
only was negative in terms of individual freedom but also was 
counter to the effort to get voluntary cooperation.
    Senator Sessions. Well, I don't think they are required to 
give that warning. I think the advisers who asked them to 
conduct the interview should have told them up front whether 
Miranda was required or not. I think that was the right thing.
    I yield back.
    Senator Feingold. Senator Sessions, thank you.
    Let me start another round. It seems to me--and certainly 
others on the panel have suggested this today--that the 
instructions that have gone out to Federal investigators who 
will conduct interviews of the 5,000 Arab and Muslim men and 
the new Responsible Cooperators Program sort of creates an 
extraordinarily high-risk choice for some immigrants. On the 
one hand, the Government is saying we will help you with 
becoming a citizen and maybe overlook your visa violation if 
you come forward and have reliable and useful information. On 
the other hand, the people conducting the interviews are told 
to call the INS if they suspect that a particular individual is 
in violation of the immigration laws. So if you are a person 
with an immigration problem but you think you have some 
information that might be helpful to our Government, you have 
got a choice. You can keep the information to yourself and try 
not to make yourself known to the Government, or you can sort 
of spin the roulette wheel and go in and talk to the FBI. If 
you are lucky, you might get citizenship, but if you are not, 
not only don't you get citizenship but you will probably be 
detained for extra weeks or months and then deported.
    If the Justice Department were really serious about trying 
to get people from these communities to cooperate with the 
investigations, wouldn't it take steps to assure people that if 
they come forward and answer questions that they will not be 
picked up on immigration violations? I guess I would be 
interested in Ms. Strossen's comments on that.
    Ms. Strossen. I think that is a very good idea, and this is 
why I think the Michigan kind of approach of voluntarism is a 
good idea, although it is inconsistent to some extent with the 
Justice Department guidelines which right now do expressly 
instruct that there should be investigation about possible INS 
violations and that it is up to the INS to determine whether 
somebody should be detained. And as we have seen, there 
certainly seems to be a presumption in favor of detention.
    I have also seen the instructions that the Attorney General 
sent out amplifying on this voluntary cooperation program, and 
they are much vaguer than the prior instructions, simply saying 
that it is a discretionary decision to be made ultimately in 
the Attorney General's sole discretion whether somebody has 
given sufficiently reliable and crucial information. I think 
this is very strong language, making it hard to be entitled to 
these waivers of deportation and other benefits. And it is only 
something that the Attorney General has to consider. So if we 
really want to follow along the kind of community policing, 
cooperative relations--building with these communities--which 
could well be good sources of information--this is why law 
enforcement officials are saying this is the wrong way to do 
it. Let's really, really be voluntary, and as Senator Feingold 
suggested and our written testimony suggests, let the Attorney 
General issue guidelines with the full force of law that would 
give a legally enforceable assurance that if you come forward, 
you are not going to be pursued on your technical immigration 
violations.
    Senator Sessions. Ms. Toensing, I would be interested in 
your reaction to this as a former law enforcement official. How 
can you get people to cooperate and tell what they know to you 
if you are sort of holding the hammer of detention over their 
heads?
    Ms. Toensing. Well, let me just tell you, Senator Feingold, 
my experience back in the mid-1980s when terrorism really first 
started focusing on Americans, but it was mostly abroad, and so 
we were looking at it differently. I thought that the way we 
controlled our borders and the way we controlled our passports, 
the State Department, an issue somebody ought to look into at 
some point, because they were so easily copied and fraudulent 
passports were so easily made, and there were ways, there were 
methods, technical methods--I am sure there are even better 
ones today--that would have prevented that. That was one of the 
issues, by the way, in some of the 19 that made it to our 
country, different passports and stolen passports and so forth. 
So my criticism comes more from that we did not carry out our 
immigration laws in the past and left many people here who were 
illegal and passed the violations.
    Now, when we are talking about today and how do we bring 
people forward, one of the first things I want to say is to 
commend the Arab newspapers in Dearborn, a former hometown of 
mine, who are now saying to the community it is time to come 
forward and it is time to cooperate. I thought it was very sad, 
as I have heard past stories about the Muslim community and 
some kind of an excuse for them to feel alienated from our 
Government. I think, Nadine, it is a culture we can't accept, 
that we have to say you are here in the United States, and in 
our country we have a culture that says you work with the 
Government if a crime this heinous took place.
    I mean, there are a lot of Muslim countries that don't want 
women to go to school. We would certainly never accept that 
part of the culture here in the United States. I think there 
are other aspects, very positive, from our country that our 
Government is not to be hated. It is always to be challenged, 
but certainly not to be hated.
    Senator Feingold. I appreciate that statement, but what 
about my question, which is: How do you get people to cooperate 
if you are holding the hammer of detention over their heads?
    Ms. Toensing. Well, I don't think that it is only the 
hammer of detention. In fact, the carrot came out, and the 
carrot was if you come in and you talk with us and tell us 
everything that you know, we can see to it--we can ignore your 
violations. It is real easy for us to sit here in theory and 
talk about this stuff, but when you are sitting there and you 
are the prosecutor or the Government official that has to make 
the call about whether someone really came forward or just came 
in and said, hey, I got some information about my neighbor, but 
I don't know much, okay, I came forward, now ignore my 
immigration problem, that is a real difficult call. So coming 
forward and giving information is just not--you know, that is 
an art, not a science.
    Senator Feingold. Thanks for that answer.
    Mr. Boyle, as someone who represents immigrants, what do 
you think of this investigative technique? How would you advise 
a client who came to you and said I know something that might 
be helpful but I am in violation of my visa?
    Mr. Boyle. Oh, boy, I would feel real bad. But I think you 
have to tell people to cooperate, but I think obviously if you 
want to encourage cooperation, you have an environment where 
people don't feel like they will then be turned around and 
thrown away. Historically, the S program has had a lot of 
problems, and in the current context, I think it has even more 
problems.
    Obviously I have tried to work with clients in the past. I 
have had some clients who have, in fact, after much struggle, 
actually achieved permanent residence after they cooperated in 
immigration investigations. But, boy, it was really a fight. 
And I think if you make it an atmosphere where people don't 
think it is a fight, where they don't think they are putting 
themselves at risk of deportation, but where they know they 
will be left alone if they are cooperative, but do no harm, and 
where they will be rewarded if they provide really good 
information, I think that is better. But I think it is hard to 
come out with that today when the last 2 months have people 
calling every day scared to death, perfectly innocent people, 
honestly, even of the ethnic groups who aren't targeted, 
thinking that, you know, they are really in trouble. So I think 
it is more effective if it is in the context of making people 
really feel part of the system and part of the United States, 
not just economically but also in this bigger sense.
    Senator Feingold. Thank you.
    Senator Sessions?
    Senator Sessions. Well, I don't think any nation in the 
world--maybe you could name one or two that have any more 
lenient immigration laws than we do. We are very generous to 
people who come here, but they do come here, don't they, Mr. 
Boyle, by permission under certain limitations that people are 
required to adhere to?
    Mr. Boyle. Absolutely, Senator. I am just saying--I am 
sorry. Absolutely. I don't want to--
    Senator Sessions. I guess I am saying that to state the 
obvious, but what I don't understand is the complaint about the 
Attorney General's offer that if people come in and cooperate, 
we are not going to prosecute them. We are going to give them a 
break. Now, what is wrong with that? Why would somebody come 
forward with information on a terrorist if he thought he was 
going to be deported? What the Attorney General is saying is, 
as I understand it--or am I missing this, Ms. Toensing?--that 
if you come forward and you have got valuable information, we 
will work with you to try to protect you. And isn't it also a 
fact based on your prosecutorial experience that if somebody 
gave information on a terrorist person in America, that their 
very lives could be at stake, their families' lives could be at 
stake, and they would want to know the Government was going to 
do something to help them?
    Ms. Toensing. Well, yes, we have been through that a lot, 
bringing people in and giving them--putting them on the witness 
protection program, which is certainly a whole other issue.
    I am trying to understand. I think it is that there is not 
certainty, that they say--
    Senator Sessions. They think they are going to double-cross 
them? Is that it?
    Ms. Toensing. Yes, if you come forward and that is 
automatic, and that is why I gave my answer that, who knows, if 
you just come in and say my neighbor I think is a bad person 
and that is all you say, that is not really coming forward. And 
so, you know, our days of Queen for a Day where you came in and 
you had to give your proffer of what you were going to tell to 
see if it was really valid information perhaps applies here. I 
think it is very difficult for someone to just come forward to 
measure before you know what it is. We never did that with 
guilty pleas or with cooperation in law enforcement. We had to 
have some measure of what the information was.
    Senator Sessions. And if the person came in and said I have 
got information that is of value, let me stay here, and it is 
not valuable and/or it is false, then they shouldn't get the 
benefit of that bargain.
    Ms. Toensing. And I think that is what the problem is here 
because the people don't know when the carrot or the stick is 
going to apply. But I say you can't do that with any certainty.
    Senator Sessions. Well, in my experience of over 15 years 
of prosecuting, there is very little incentive for a person who 
is involved in a criminal activity or knows about that criminal 
activity to come forward and tell about it. He is going to make 
whoever his buddy was very mad. He is going to be hauled into 
court. He might get charged or she might get charged with 
something also.
    So the question, I guess, is the threat of prosecution is 
the best way and the most common way, is it not--at least in my 
experience it is, and I will ask you, Ms. Toensing. In your 
experience, the threat of prosecution and the possibility of 
some leniency is what overcomes a person's self-interest not to 
talk.
    Ms. Toensing. We have got both a carrot and a stick out 
there, and some people respond better to the carrot and some to 
the stick. We all know that who have raised children. Sometimes 
it just depends on the day.
    Senator Sessions. Criminals respond best to the stick. Some 
really in this circumstance I think should very well be 
troubled by what they know and would like to get that 
information to the authorities, but might be afraid, Mr. 
Emerson, that if they do, it will get out and their family 
could be at risk. Is that a realistic statement I just made in 
your experience?
    Mr. Emerson. Absolutely. I mean, if you look at the people 
that have either offered information or have been prevailed 
upon to offer information, you know, there are some examples, 
like Ahmed Ressam, who came in from Vancouver into Seattle, and 
for a good year and a half, he did not reveal the intended 
target of his plot, and the ongoing operatives in his cell were 
still out in the United States, and he had plotted to bomb LAX. 
And it was only because of the severity of the punishment that 
he was facing and the likelihood that it could be reduced that 
he decided to say I am going to cooperate right now. And he has 
requested protection as well for his family.
    Senator Sessions. I think that is a common thing. Maybe I 
misunderstood your concerns on that, but I really think the 
Attorney General needed to send a signal to a community, many 
of which may not be that familiar with Federal procedures, that 
if they do come forward and help the United States, we will try 
to help you. That is the way I interpreted it. It may not get 
many people to come forward, but maybe one or two could be of 
some value. So I think it was a good statement.
    Senator Feingold. Well, I think you are correct in part. 
There is no certainty that you will be treated well if you 
cooperate, as has been pointed out. What the Attorney General 
has done is given himself discretion to help people out if they 
give, quote, reliable and useful information. But the problem 
is that at the same time he has given instructions to the FBI 
to refer people to interrogate to the INS if they have visa 
violations. So the conversation here has been sometimes a stick 
works, sometimes a carrot works. Here really what happens is 
you have the carrot being undermined by the stick. It is sort 
of simultaneous, and that is the problem with it, in my mind, 
at least the nature of the concern. But I am certainly 
interested in the discussion.
    I just have a couple more questions. You have been very 
patient, so we will try to come to a conclusion, depending on 
what Senator Sessions would like to do.
    Let me ask you, Ms. Strossen, all of the 5,000 men that the 
Justice Department wants to question are men between the ages 
of 18 and 33. Is there any conclusion to be drawn from this 
fact other than the Department must be seeking to capture 
terrorists in this dragnet as opposed to actually seeking 
information? Wouldn't women from these countries and older 
people from those countries be as likely or at least somewhat 
likely to have useful information for an investigation as these 
men if that is really what it is for?
    Ms. Strossen. You are absolutely right, Senator Feingold, 
and, in fact, if you look at the questions themselves, that 
inference is reinforced because many of the questions are the 
kinds of questions that would not be asked of witnesses but 
that would be asked of potential suspects. And I think that is 
why this half-carrot and half-stick is so flawed and why we 
said it is more like a sting operation, because you are 
offering the carrot and then when somebody comes forward to 
bite the carrot, you hit them with the stick.
    Also, the trust has so far been eroded already in the Arab 
American community and the Muslim community. If I might, I 
would like to point out a statement that was released by the 
American Arab Anti-Discrimination Committee which pointed out 
such a basic problem--and I am quoting now from a press 
released dated November 29th--that if Mr. Ashcroft had 
consulted with anyone familiar with the Arabic language, he 
would have known that the word ``cooperator'' has an extremely 
negative connotation that may deter many from participating in 
a program such as this. And then there are other spokespeople 
that go on to say that the trust has already been so undermined 
by the programs that we have been criticizing here this 
afternoon that it is a little bit too late to get people to 
trust, especially with these vague standards that simply give 
the Attorney General discretion, and even the standards 
themselves on their face are discretionary: reliable 
information, important information, crucial information.
    So I think the Government is sending such mixed signals in 
so many different ways, you know, saying--the letter itself 
says you are not a suspect, but then, on the other hand, if 
they really are seeking the full community information and 
support, why are they limiting it to people who only happen to 
share certain societal group characteristics that are shared by 
the hijackers that have been identified? And that is why one of 
the other critiques is that this is a form of profiling, which 
is doubly flawed. Justice is violating the rights of completely 
innocent people. It is also a completely ineffective method of 
law enforcement, since you are using the dragnet instead of 
honing in on people's behavioral characteristics that give rise 
to individualized suspicion.
    Senator Feingold. I think that is a very valuable answer, 
and I am very glad that issue came out in the hearing.
    Let me ask you again, Ms. Strossen, another question. Two 
separate public opinion polls released last week appear to show 
that a majority of Americans support the steps taken by 
President Bush to combat terrorism, but have little concern 
with how these steps may infringe the rights of U.S. citizens 
or non-citizens. In a letter to the editor in yesterday's 
Washington Post, Ali Ayub made the astute observation that 
American citizens are willing to sacrifice civil liberties in 
the fight against terrorism, but which Americans are doing the 
sacrificing? It turns out that Mr. Ayub, who is an American 
citizen, has a name that is similar to--not any of the 
hijackers, but an individual arrested with suspected links to 
terrorism. Mr. Ayub has had to endure interviews at home and 
work by the FBI, the FBI's investigation of him through contact 
of his neighbors, friends, and a broker, and numerous freezing 
of his bank accounts without any prior notice.
    He concludes by poignantly noting that what scares him even 
more is that he is an American citizen and that, while he is 
not in jail, joining the hundreds of detainees we have talked 
about today, the only crime he is guilty of is that his name is 
Ali Ayub, not Joe Smith. So I would like to submit, without 
objection, Mr. Ayub's letter to the editor for the record.
    Unfortunately, we know that his case is not an isolated 
case. There have been other similar missteps by the FBI or 
other Federal officials and investigating people, including 
United States citizens, who have no ties to terrorism 
whatsoever.
    I would like you to respond to this problem, that at least 
according to these polls--and I know very well, as Senator 
Sessions does, that polls can depend so much on how the 
question is asked. But the polls appear to suggest that many 
people are quick to support this abridgment of rights as long 
as they are not the ones who are actually bearing the burden. 
How do you react to that?
    Ms. Strossen. Well, I think perhaps a common human reaction 
is if you think the measure is going to benefit you and not 
hurt you, then you will support it. The pain goes to somebody 
else. And that is why I think it is critically important that 
we explain to the American people, including through members of 
the law enforcement community themselves, that maybe these 
measures are not likely in fact to benefit you, that they are 
as flawed, from a national security point of view, as they are 
flawed from a civil liberties point of view.
    And as for the second part of the equation, that these 
measures are not going to burden Americans, I think that is 
unfortunately an illusion, as the example that you have given, 
Senator Feingold, has already shown. So many of the rationales 
that the Justice Department is putting forth for measures now 
that are targeted only at noncitizens, but also the same 
rationale could equally well apply to an American citizen.
    To use the military tribunal example, President Bush has 
relied to justify that tribunal on a Supreme Court decision 
that expressly said that the authority to constitute these 
tribunals did not depend on whether the person being tried was 
or was not a citizen. You know, it is the reason why the ACLU 
has always insisted on defending all fundamental freedoms for 
everyone, because we know that once the government gets the 
power to violate somebody's right, it inevitably is going to 
use that very same power against the right of somebody else.
    Senator Feingold. Thank you.
    Senator Sessions?
    Senator Sessions. Well, I think you make an interesting 
comment, that President Bush's Executive Order was more limited 
than the Supreme Court gave him the power to issue it, but it 
did nevertheless say that before anyone could be tried, even a 
noncitizen, and that is the only ones it applied to, before 
they could be tried in a military tribunal, they have to be 
associated with a terrorist, international terrorist 
organization or al Qaeda. In fact the Supreme Court does seem 
to indicate that even citizens who are involved in a warlike 
attack on the United States can be tried in a military 
tribunal, which President Bush chose not to do that.
    No one here--and the polls are not asking the American 
people to affirm an improper and erroneous arrest of Mr. 
Goldstein's client perhaps or Ali Ayoub improperly. The 
American people do not support erroneous carrying out of law 
enforcement. They do not support that.
    But what I think is missing here, and the error that we are 
about, is we are characterizing things that are perfectly 
legitimate established laws of the United States is somehow in 
violation of civil liberties. To interview a potential witness, 
how many witnesses did we interview in the Oklahoma City 
bombing case? Thousands, I am sure. So interviewing witnesses 
is not a violation of civil rights, particularly when you are 
not compelled to give an answer. And many of the other matters 
that have been asserted as somehow undermining American law, I 
think are great exaggerations.
    So the extent to which our government is not adhering to 
the law, I think they need to be held to account, and it does 
appear that in the rush after these events, some events 
occurred that were not justified, and I would apologize to you 
if you were wrongly held and your client, but it do not believe 
that the government should provide, in the case of a terrorist 
attack against America, more rights to defendants than we give 
to routine criminal defendants in America today. And they are 
entitled to get their lawyer, they are entitled to the day in 
court. They can call their mama or they can call their lawyer, 
and they can tell whoever they want to they are arrested, but 
the Attorney General is not required to announce to the world 
they have been arrested. I do not think that violates their 
rights.
    So I think we are in pretty good shape all things 
considered. The Attorney General and the FBI are challenged 
tremendously. We expect them to protect us as well as we expect 
the special forces in the Marines to be protecting us. And we 
want to hold them to account, make sure they follow the law, 
but at the same time, we need to understand the seriousness of 
their task and the challenge they face and the great 
protections that law gives them.
    Mr. Chairman, let me just say, you and I may disagree on 
this, but I know you deeply believe in liberty in America. I 
know you care about that. I believe it is healthy, so let us 
put it all put on the table right here. Ms. Strossen and Boyle 
and all, you have made some--Mr. Goldstein--your points 
effectively. We ought to listen to what you say, and try to 
make the law work correctly. So I think it is healthy to do 
this. I just do not think the Attorney General is going nearly 
as awry as you might think.
    Senator Feingold. Well, I appreciate that very much and 
your participation. I would say it is a little more than 
healthy. It is not like just a good walk in the morning. It is 
essential that we have these sorts of hearings and that they be 
as extensive as this, and I really do admire your willingness 
to participate throughout the entire hearing.
    Let me just say that the purpose here is not to 
characterize the activities of the Attorney General or the 
President as somehow inappropriate or something that could 
never be done. The problem is though, is that in each of these 
areas, an example is taken of something that is done in very 
limited circumstances, and then used to justify a very 
substantial change in the scope or the way in which it is done. 
For example, the military tribunals. Somebody just says, well, 
we have had military tribunals before; what is the big deal? 
That is not the whole story. The whole story is exactly what is 
the basis for it? What is the nature of the Executive Order?
    Maybe it is the case, as Ms. Toensing suggests, that on 
occasion in certain circumstances, rare I hope, it is okay to 
listen to somebody's attorney-client conversation. My suspicion 
is that that is incredibly narrow, and that basically the 
American people are being told, why are you getting upset about 
that? It is perfectly appropriate to do that, and it gets 
broadened in that way.
    And the same thing goes for the detainees. I mean I am not 
against the idea of military tribunals in all circumstances. I 
am not against the idea of detaining people including in this 
case. But when we are not given the information that simply 
should be given in a situation like this so we can analyze what 
is going on, how do we know whether or not what is being done 
now is in the traditional way in which these matters are 
handled, or whether something entirely different is being done? 
And the same goes for the interviewing of 5,000 people, who 
happen to be all men between the ages of 18 and 33, even though 
the justification is that we are trying to just get 
information, we are not trying to specifically identify the 
terrorists.
    So I would just say to the Senator, the problem here is 
that these are potentially enormous changes of scope and in the 
way these procedures are used, even though they may have been 
permitted in certain circumstances in the past, and that to me, 
is where we are at in the discussion of this at this time. And 
with that--
    Senator Sessions. Could I--
    Senator Feingold. Senator Sessions?
    Senator Sessions. Senator Hatch had wanted me to ask a 
question. I would, just based on--well, I will not get into 
that. Let me just ask the questions to Mr. Ali Al-Maqtari that 
Senator Hatch would like to ask.
    You came here under a non-immigrant visa; is that correct, 
to the United States?
    Mr. Al-Maqtari. Tourist visa.
    Senator Sessions. And there was a limit on the time that 
you were allowed to stay in the United States?
    Mr. Al-Maqtari. Yes.
    Senator Sessions. And you knew that you were here 
illegally?
    Mr. Al-Maqtari. Yes.
    Senator Sessions. You knew that your time had expired?
    Mr. Al-Maqtari. I applied for extension before my visa 
expired.
    Senator Sessions. But your time had expired and you had not 
been approved additional time?
    Mr. Al-Maqtari. But they did not say that they refuse my 
application. They just give me a letter from INS saying we are 
discussing your file, and between 60 and 120 days you will hear 
from us an answer. After 120 days they give me another letter. 
They say, we discussed your file, and we want you to send us 
this and this and this, bank statement, whether you will leave, 
your situation. And they give me time until August 15 to send 
them these papers. Before August 15 I was married to my wife, 
so I think I was waiting for the answer. So I think I am--
    Senator Sessions. I can understand your feeling, but I 
think technically you were not approved for continuance staying 
in. But let me ask you this: is it not a fact that the day 
after the attack and the day you were arrested, you were found 
with box cutters?
    Mr. Al-Maqtari. Yes.
    Senator Sessions. I think that may explain some of the 
concern on behalf of law enforcement. It may not justify 
improper legal activity, but perhaps that showed some reason 
for the intensity of interest that there may have been here.
    Senator Feingold. Mr. Al-Maqtari, why did you have box 
cutters?
    Mr. Al-Maqtari. Okay. I had one box cutter, not two. One of 
mine--the other one is my wife. My uncle here has a grocery 
store, and sometimes I was helping them there, so we use these 
box cutters to--you know, it is a grocery store. And when we 
decided to move to Kentucky, we was preparing our stuff, so we 
used these box cutter to prepare our stuff. And then we 
finished preparing our stuff, and I put the box cutter in the 
car. So I did not know until the day before my hearing, I did 
not know that carrying box cutter, it is small, dangerous 
carrying RBG or--
    Senator Feingold. Good. I wanted to get that on the record.
    I want to thank all of our witnesses and Senator Sessions 
very much. We have a vote on again. I had hoped to stop and 
chat with each of you and thank you personally, but I have to 
run, but thanks so much.
    At this point we will include the statements of Senators 
Thurmond and Kennedy in the record.
    [The prepared statements of Senators Thurmond and Kennedy 
follow:]

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

    Mr. Chairman:
    Thank you for holding this important hearing on the detention of 
individuals suspected of links to terrorist organizations. I take 
seriously this committee's responsibility for overseeing the Justice 
Department, and we should ensure that the government's actions are in 
accordance with the Constitution. We must seek to formulate law 
enforcement initiatives that will be rigorous, giving DOJ the best 
possible opportunity of bringing to justice those associated with the 
terrorist attacks. At the same time, we must not compromise our 
Nation's historical commitment to due process and civil liberties.
    I believe that the Bush Administration's detention policy is not 
only necessary for our national security, but it is also a legitimate 
use of powers under the Constitution. Two aspects of the detention 
policy have been highly criticized: the detentions themselves and the 
lack of public information released on detainees. Today, we will hear 
detainees' have access to lawyers and are treated properly. However, we 
must not allow isolated incidents to lead us to the conclusion that the 
government is shamelessly violating the civil rights of detainees.
    Congress and the Administration have worked together to fashion a 
sensible policy on the detention of those charged with immigration 
violations or criminal laws. Once a person is taken into custody, the 
USA PATRIOT Act provides that the Attorney General may certify that he 
has reasonable grounds to believe that someone is a terrorist or 
security threat. The Attorney General then has seven days to charge the 
alien with an immigration or criminal violation. Upon the expiration of 
seven days, he must release the alien or charge him with a violation of 
law. The safeguard to this procedure is review in Federal court.
    The Attorney General is using material witness warrants to hold all 
other detainees. Some critics question the practice of holding people 
as material witnesses, but the government must balance its need for 
crucial information with the liberty interests of detainees. 
Furthermore, current law allows for the detention of material witnesses 
for a ``reasonable period of time'' under 18 U.S.C. Sec. 3144. It is 
important to remember that the government's power of detention is not 
unchecked. Detainees have recourse to review by Federal courts.
    Congress should also give deference to the President's powers as 
Commander-in-Chief. The detention of suspects and witnesses serves not 
only law enforcement objectives by national security objectives as 
well. We are involved in a war against terrorism, and we should be 
sensitive to the national security concerns regarding the detentions. 
In fact, the Supreme Court has acknowledged that there may be 
circumstances where national security concerns call for deference to 
the executive branch's use of detentions. Zadvydas v. Davis, 121 S. Ct. 
2492 (2001).
    Some critics have also raised concerns about the Department of 
Justice's failure to release extensive details regarding detainees. As 
former Attorney General Barr indicated in his testimony before this 
committee last week, the Supreme Court has never interpreted the 
Constitution to require that all details of a law enforcement 
investigation be disclosed. For example, grand jury proceedings are 
kept secret so that the integrity of a criminal investigation is not 
tarnished. And even more relevant, affidavits in support of arrest, 
material witness warrants, and indictments are commonly filed with the 
court under seal if their disclosure would compromise an investigation.
    Under current circumstances, detailed information about the 
detainees could provide crucial information to the cells of the al 
Qaida terrorist network. If terrorist cells operating in this Country 
were able to determine how their movements were being detected, they 
would adjust their operations in order to avoid detection. We must 
remember that we are at war, and the United States is still vulnerable 
to terrorist attacks. The United States government has a legitimate 
need for secrecy in its effort to disrupt the functioning of al Qaida.
    There is a misconception that the identities of all charged persons 
is secret. This is not so. According to Assistant Attorney General 
Michael Chertoff's testimony before this committee last week, the 
identity of every person arrested on a criminal charge is public 
information. Additionally, the government is not preventing a detained 
individual from identifying himself. There is nothing to indicate that 
detainees are being held in secret.
    By not providing a list of detainees to the public, DOJ is actually 
protecting the privacy of the detainees. Because the detention itself 
is not secret, an individual detainee would not benefit from the 
publication of his name. In fact, a list could only serve to invade the 
privacy interests of the detainees by making their detention available 
to anyone. If such a list were published, there would surely be 
criticism that this list served no purpose but to smear the reputations 
of people caught up in the investigation.
    Mr. Chairman, I appreciate your commitment to ensuring that our 
Nation protect the civil liberties of those under investigation. Even 
though we are at war, we must not allow our Constitution to be trampled 
in the name of justice. We must pay close attention to the assertions 
of our witnesses today. However, we must keep in mind that Assistant 
Attorney General Chertoff testified that all detainees are being 
provided with access to counsel and the right to make phone calls to 
families and attorneys. With these safeguards, I believe that the 
detention policies of the Administration are beneficial tools in our 
war against terrorism.

                                

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

    As we seek to deal with those responsible for the terrorist attacks 
of September 11th, we must also uphold the fundamental civil 
liberties that our country stands for.
    Several of the Administration's recent policies and actions raise 
serious questions about their impact on basic freedoms protected by the 
Constitution. The Department of Justice policy would allow the 
monitoring of privileged attorney-client communications--without 
judicial supervision, and without even a showing of misconduct by the 
attorney involved. Since September 11th, hundreds of people 
have been detained for a variety of reasons. Few appear to be linked to 
terrorist activities, but the Department has refused to disclose basic 
information about these detainees' identity and the grounds for 
detention. The Department's current questioning of 5,000 legal 
immigrants--almost all of whom are Middle Eastern--has raised concerns 
by local police departments about racial profiling.
    I commend Chairman Feingold for holding today's hearing on these 
important issues. As we pursue our goal of bringing the terrorists to 
justice, enhancing our security, and protecting fundamental civil 
liberties, it is imperative for the Administration and Congress to 
share information and work together--as we did in the weeks immediately 
following the attacks.

    Senator Feingold. Senator Sessions has asked that a 
newspaper article be placed in the record and we will include 
it at this point.
    The hearing is concluded.
    [Whereupon, at 4:43 p.m., the Committee was adjourned.]











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

                              ----------                              


                       THURSDAY, DECEMBER 6, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:02 a.m., in 
Room SD-106, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Kohl, Feinstein, 
Feingold, Schumer, Durbin, Cantwell, Edwards, Hatch, Thurmond, 
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. I don't want to cut off the press in any 
way here, but I would ask you to step back now, if we could.
    Just a couple of housekeeping things before we start. I am 
advised there will be roll call votes this morning. Attorney 
General Ashcroft is familiar with that, and first off, I thank 
the Attorney General for being, as he told me earlier, 
unsenatorial and arriving early, and I do appreciate that.
    What I think we would do, with Senator Hatch's agreement, 
if we might, if a roll call starts, we will continue on with 
the questioning. And at some point, as the time goes down that 
first roll call, as one Senator finishes we will break and the 
Senators will go over so we can do that roll call, plus the 
next one, come back, and begin again with whoever is next in 
line. So hopefully we will be gone for only about 10 minutes, 
12 minutes or so, and then just see what happens with the third 
roll call. I am trying to accommodate as many of you as I 
might.
    To the Attorney General, I would say I welcome you here. 
When you and I chatted on the phone yesterday, as you know, I 
called to thank you for coming and I appreciate it. And, of 
course, you served with almost everybody on this Committee, so 
you should feel at home. I appreciate the comments you made 
yesterday, as you were telling me just earlier, when asked 
about whether there should be some kind of a bipartisan panel 
to look at all these things, and you said, well, there is at 
least one, the one right here, on which you served with 
distinction for years.
    In the 12 weeks since the September 11th attacks, Americans 
in law enforcement have been working tirelessly to protect the 
public, to capture and thwart terrorists, and to bring them to 
justice. And for its part, Congress too has moved promptly on 
several fronts, including our expedited consideration and 
enactment of the anti-terrorism bill 2 months ago.
    Now, in the 2 months since your last appearance before this 
Committee, General, terrorism has also reached Congress' 
doorstep. That is why we are meeting in this room today and not 
in the Hart Building, which remains closed. One of the two 
anthrax letters that came to the Hill went to, as you know, the 
Hart Building, and it was of such a powerful nature, that 
building is still closed.
    Last week, the Justice Department witness appearing before 
this Committee described Congress as a ``full partner'' in our 
Nation's anti-terrorism efforts. That is the way the Founders 
and the Constitution intended it, and I appreciate Mr. Chertoff 
in saying that. The partnership of our two branches of 
Government working together produced an anti-terrorism bill 
that was actually better than either the executive branch or 
the legislative branch would have produced had they acted on 
their own. Also, because we acted together, we had greater 
confidence of the public in the result. America works best when 
all parts of our Government work together.
    As we continue our discussion of important and difficult 
questions about the means to be used in the fight against 
terrorism, let no one, friend or foe, make any mistake about 
what this discussion is. It is a principled discussion of 
policy approaches. It is a constructive assessment of the 
effectiveness of those approaches. It is undertaken by partners 
in our country's effort against a common and terrible enemy.
    Tomorrow is the 60th anniversary of the attack on Pearl 
Harbor. Many have compared the galvanizing effect of that 
attack to that of the atrocities committed on September 11th. 
Well, today, just as 60 years ago, Government at every level is 
under great pressure to act. Our system is intended to help 
make sure that what we do keeps us on a heading that achieves 
our goals while holding true to our constitutional principles. 
The Constitution does not need protection when its guarantees 
are popular, but it very much needs our protection when events 
tempt us to just this once go beyond the Constitution.
    The need for congressional oversight and vigilance is not, 
as some mistakenly describe it, ``to protect terrorists.'' It 
is to protect ourselves as Americans and protect our American 
freedoms that you and I and everybody in this room cherish so 
much. And every single American has a stake in protecting our 
freedoms. It is to make sure that we keep in sight at all times 
the line that separates tremendous Government power on the one 
hand and the rights and liberties of all Americans on the other 
hand. It is to make sure that our Government has good reason 
before snooping into our bank records, our tax returns, our e-
mails, or before the Government listens in as we talk with our 
attorneys. It is to make sure that no one official, however 
well intentioned, decides when that line is to be crossed 
without good reason for that decision.
    Now, whether the administration's recent actions are 
popular or unpopular at the moment, that is not the issue. As 
the oversight Committee for the Department of Justice, we 
accept our responsibility to examine them. That is our role 
under the Constitution. That is our duty. We are sworn to do 
that. We will not shrink from that duty.
    But so, too, is congressional oversight important in 
helping to maintain public confidence in our system of laws. In 
our society, unlike in so many other nations, when a judge 
issues an order, it is respected and carried out because the 
public has faith in our system and its laws. The division of 
power and the checks and balances built into our system help 
sustain and earn the public's confidence in the actions taken 
by the Government. The consent of the governed that is at the 
heart of our democracy makes our laws effective and sustains 
our society.
    I commend Senator Schumer, the Chair of the Administrative 
Oversight and Courts Subcommittee, and Senator Feingold, the 
Chair of our Constitution Subcommittee, for holding their 
hearings earlier this week, for the very constructive 
contributions to those hearings by Senator Hatch and Senator 
Sessions and Senator Durbin and Senator Feinstein and others. 
That is in the finest tradition of our Senate and our country.
    During the past week of hearings and public debate, this 
oversight process already has contributed to clarifying the 
President's Order to establish military tribunals. It now seems 
following these hearings that the President's language that 
ostensibly suspends the writ of habeas corpus and the language 
providing for secret trials and the expansive sweep of the 
President's November 13 Order were not intended; instead the 
administration's intention is to use procedural rules more like 
those in our courts and our courts martial.
    Over the last week it has become clear that, as written, 
the President's Order outlines a process that is far different 
than our military system of justice. American military justice 
is the best in the world. It includes open trials and right to 
counsel and judicial review. The public can see what is 
happening. It also appears that the risks of pursuing 
``victor's justice'' are beginning to be understood more fully 
as the initial conception of that Order is clarified. And I 
commend the members of this Committee for their contribution to 
that process.
    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, Republicans, moderates, 
conservatives, liberals, have expressed concern about the broad 
powers asserted by the administration and about the manner in 
which it asserted them--bypassing Congress and the court. But 
last Wednesday's hearing allowed the Committee to hear 
firsthand from legal experts across the spectrum on these 
questions.
    Now, let me be very clear. There are circumstances where 
military tribunals are appropriate, and I agree with the 
constitutional experts and others who have testified before the 
Committee that military tribunals can have a role in the 
prosecution of the campaign against terrorism. But many issues 
remain how to proceed with such tribunals in the best interest 
of our national security, and ultimately the question is not 
only whether our Government has the right or the power to take 
certain actions and in certain ways, but whether the means we 
choose really protect our security.
    Defining those circumstances where military tribunals serve 
our national security interest is no easy task. Congress has 
contributions to make to this discussion, as we already have. 
To many, the constitutional requirement that military tribunals 
be authorized by Congress is clear. To others, it is not. To 
everyone, it should be beyond argument that such an 
authorization, carefully drawn by both branches of Government, 
would be helpful in resolving this doubt. It would give 
credibility to the use of military tribunals. Several members 
of the Committee of both parties have been crafting ideas for 
such an authorizing resolution to clarify these issues.
    Mr. Attorney General, when I have called you in the past on 
issues to work with us, you have. And so I invite you to work 
with members of the Committee in creating a consensus charter 
for tribunals. And I suspect the Armed Services Committee, 
several members of which are on this Committee, would want the 
same.
    It is never easy to raise questions about the conduct of 
the executive branch when our military forces are engaged in 
combat, even when those questions do not concern our military 
operations. The matters we are examining concern homeland 
security and our constitutional rights and preserving the 
limits on governmental authority that form the foundation of 
our constitutional democracy.
    These are questions that go to the heart of what America 
stands for, to its people and to the world, especially to show 
them what we are and what we do when we are put to the test, a 
test that we have been put to far more than most of us can 
remember.
    These are questions that we need to debate openly and 
thoughtfully. This Committee hopes to cast a light of reasoned 
public inquiry on the administration's actions, especially on 
sweeping unilateral actions that might affect fundamental 
rights. Ultimately, taking a close look at the assertions of 
Government power is one of the best ways to preserve our 
freedom and our security.
    None of us in elective or appointive positions in 
Government has a monopoly of wisdom or of patriotism, and under 
our system, none of us has a monopoly on authority.
    The Framers of our Constitution had great confidence in 
George Washington. They didn't expect him to abuse his power. 
But they did not entrust their liberty to his or to any 
Government's good intentions. Instead they provided a system of 
checks and balances, including congressional oversight and 
judicial review and public scrutiny. This Committee will be 
vigilant in seeking to preserve those fundamentals of our 
American constitutional system. We can be both tough on 
terrorists and true to the Constitution. It is not an either/or 
choice.
    So I look forward to hearing from the Attorney General. He 
is a friend of each and every one of us on this Committee. I 
thank him for making this appearance.
    [The prepared statement of Chairman Leahy follows:]

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

    Attorney General Ashcroft, welcome.
    In the 12 weeks since the September 11 attacks, Americans in law 
enforcement have been working tirelessly to protect the public, to 
capture and thwart terrorists, and to bring them to justice. For its 
part, Congress too has moved promptly on several fronts, including our 
expedited consideration and enactment of the anti-terrorism bill two 
months ago.
    In the two months since your last appearance before this committee, 
terrorism also has reached Congress's doorstep. That is why we are 
meeting in this room today, and not in the Hart Building, which remains 
closed.
    Last week the Justice Department witness appearing before this 
committee described Congress as a ``full partner'' in our nation's 
anti-terrorism efforts. That is how the Founders and our Constitution 
intended it. The partnership of our two branches of government working 
together produced an anti-terrorism bill that was better than either 
branch acting alone would have produced, and with greater public 
confidence in the result. America works best when all parts of our 
government govern together.
    As we continue our discussion of important and difficult questions 
about the means to be used in the fight against terrorism, let no one, 
friend or foe, mistake this for anything other than what it is: a 
principled discussion of policy approaches, and a constructive 
assessment of the effectiveness of those approaches, undertaken by 
partners in our country's efforts against a common enemy.
    Tomorrow is the 60th anniversary of the attack on Pearl 
Harbor. Many have compared the galvanizing effect of that attack to 
that of the atrocities committed on September 11. Today, as 60 years 
ago, government at every level is under great pressure to act. Our 
system is intended to help make sure that what we do keeps us on a 
heading that achieves our goals while holding true to our 
constitutional principles. The Constitution does not need protection 
when its guarantees are popular, but it very much needs our protection 
when events tempt us to, ``just this once,'' abridge its guarantees of 
our freedom.
    The need for congressional oversight and vigilance is not, as some 
mistakenly describe it, ``to protect terrorists;'' it is to protect 
ourselves and our freedoms, something in which each and every American 
has a stake. It is to make sure that we keep in sight at all times the 
line that separates tremendous government power on the one hand and the 
rights and liberties of all Americans on the other. It is to make sure 
that our government has good reason before snooping into our bank 
records, our tax returns or our e-mail, or before the government 
listens in as we talk with our attorneys. It is to make sure that no 
one official, however well intentioned, decides when that line is to be 
crossed, without good reason for that decision. Whether the 
Administration's recent unilateral actions are popular or unpopular at 
the moment, as the oversight committee for the Department of Justice, 
we accept our responsibility to examine them. This is our role under 
the Constitution, this is our duty, and we will not shrink from it.
    So, too, is congressional oversight important in helping to 
maintain public confidence in our system of laws. In our society, 
unlike in so many other nations, when a judge issues an order, it is 
respected and carried out because the public has faith in our system 
and its laws. The division of power and the checks and balances built 
into our system help sustain and earn the public's confidence in the 
actions taken by their government. The consent of the governed that is 
at the heart of our democracy makes our laws effective and sustains our 
society.
    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 their hearings earlier 
this week, and for the constructive contributions to those hearings by 
Senator Hatch, Senator Sessions, Senator Durbin, Senator Feinstein and 
others. They were acting in the finest tradition of the Senate and this 
country.
    During the past week of hearings and public debate, this oversight 
process already has contributed to clarifying the President's order to 
establish military tribunals. It now seems that the President's 
language that ostensibly suspends the writ of habeas corpus, the 
language providing for secret trials, and the expansive sweep of the 
President's November 13 order were not intended; instead the 
Administration's intention is to use procedural rules more like those 
used in our courts and our courts martial. Over the last week it has 
become clearer that, as written, the President's order outlines a 
process that is far different than our military system of justice. 
American military justice is the best in the world and includes open 
trials, right to counsel and judicial review. It also appears that the 
risks of pursuing ``victor's justice'' are beginning to be understood 
more fully as the initial conception of the order is being reformed and 
clarified. I commend the members of this committee for their 
contributions to that process.
    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, moderates and conservatives, have 
expressed concern about the broad powers asserted by the Administration 
and about the manner in which it has asserted them--bypassing both 
Congress and the courts. Last Wednesday's hearing allowed the Committee 
to hear firsthand from legal experts across the spectrum on these 
questions and to assist in clarifying the Administration's intentions 
and actions.
    There are circumstances where military tribunals are appropriate. I 
agree with the constitutional experts and others who have testified 
before the Committee that military tribunals can have a role in our 
prosecution of the campaign against terrorism. However, many issues 
remain about how to proceed with such tribunals in the best interests 
of our national security. Ultimately, the question is not only whether 
our government has the right or the power to take certain actions and 
in certain ways, but whether the means we choose truly protect our 
security.
    Defining those circumstances where military tribunals serve our 
national security interests is no easy task, and Congress has 
contributions to make to this discussion, as we already have. To many, 
the constitutional requirement that military tribunals be authorized by 
Congress is clear. To others, it is not. To everyone, it should be 
beyond argument that such an authorization, carefully drawn by both 
branches of government, would be helpful in resolving this doubt and in 
lending credibility to their use. Several members of the Committee of 
both parties have been crafting ideas for such an authorizing 
resolution to clarify these issues, and I invite you to work with 
members of the Committee in exploring a consensus charter for 
tribunals.
    It is never easy to raise questions about the conduct of the 
Executive Branch when our military forces are engaged in combat, even 
when those questions do not concern our military operations. The 
matters we are examining concern homeland security, our constitutional 
rights, and preserving the limits on governmental authority that form 
the foundation of our constitutional democracy. These are questions 
that go to the heart of what America stands for, to its people and to 
the world, when we are put to the test. These are questions that we 
need to debate openly and thoughtfully. This committee hopes to cast 
the light of reasoned public inquiry on the Administration's actions, 
especially on sweeping unilateral actions that might affect fundamental 
rights. Ultimately, taking a close look at assertions of government 
power is one of the best ways to preserve our freedoms and ensure our 
security.
    None of us in elective or appointive positions in government has a 
monopoly of wisdom or of patriotism, and under our system, neither do 
any of us have a monopoly of authority.
    The Framers of our Constitution had great confidence in George 
Washington and certainly did not expect him to abuse his power. But 
they did not entrust their liberty to his, or to any government's, good 
intentions. Instead they provided for a system of checks and balances, 
including congressional oversight, judicial review and openness to 
public scrutiny. This committee will be vigilant in seeking to preserve 
those fundamentals of our American constitutional system. We can be 
both tough on terrorists and true to the Constitution.
    I look forward to hearing from the Attorney General. I want to 
thank him again for appearing today and hope that he will be able to 
stay to answer the questions of all senators.

    Chairman Leahy. I turn to Senator Hatch, a man I have 
served with for decades now, back when his hair was black and 
mine was there.

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

    Senator Hatch. That is right. Well, thank you, Mr. 
Chairman. I am honored to be with you today, and as you know, I 
was pleased to co-author with you the letter we sent to our 
good friend and former colleague, the Attorney General of the 
United States, asking him to come before this Committee to 
describe for us and for the American people some of the recent 
initiatives undertaken by the administration to protect 
Americans from terrorist attacks. And I am gratified that 
Attorney General Ashcroft readily accepted our invitation and 
has taken time from his critical duties to be here with us 
today.
    Mr. Chairman, a week ago, the airwaves were filled with 
alarmist rhetoric charging that the administration's actions 
had trampled the Constitution. During the course of these 
oversight hearings, as expert after expert has affirmed the 
constitutionality of these measures, I have noticed a change in 
the tone of the criticisms being leveled at the administration. 
The principal complaints we now hear are not that the measures 
are unconstitutional but, rather, that the Justice Department 
has engaged in insufficient consultation with Congress or with 
this Committee before announcing them.
    Now, I have a couple of observations on this particular 
topic. First, let's put this issue in perspective. We are at 
war. We are battling an enemy committed to an absolute, 
unconditional destruction of our society. The principal means 
that the enemy employs toward this goal is the killing of our 
civilians in their homes and in their places of business. To 
the extent that this war is being waged on American soil, the 
Attorney General is one of the leaders in this war. I would 
hope that in this time of crisis we would all check our egos 
and for the good of this country look at the merits of these 
proposals rather than the manner in which they are packaged.
    I am not saying that we don't have a solemn obligation to 
assess the Department's actions to ensure that they are both 
effective and sufficiently protective of our civil liberties. 
But do any members of this Committee really believe that in 
this time of crisis the American people, those who live outside 
the Capital Beltway, really care whether the President, the 
Secretary of Defense, or the Attorney General took the time to 
pick up the telephone and call us prior to implementing these 
emergency measures? I implore my colleagues, let's keep our 
focus where it matters: on protecting our citizens.
    Certainly the American people are not interested in 
watching us quibble about whether we should provide more rights 
than the Constitution requires to the criminals and terrorists 
who are devoted to killing our people. They are interested in 
making sure that we protect our country against terrorist 
attacks.
    To those of you who say that our input is necessary to make 
sure that these measures are done right, I say look around, 
look at the actions of the President. What do you think is 
happening? President Bush could have proceeded as President 
Franklin D. Roosevelt did in 1942. He could have privately 
called the Secretary of Defense and had him start working 
confidentially on procedures for military tribunals.
    Months from now, President Bush could have announced we 
have captured some terrorists in Afghanistan, we will try them 
by military tribunal and here are the procedures for the 
tribunals that have been established by the Secretary of 
Defense.
    President Bush did not proceed that way. Instead, he 
responsibly, in my opinion, announced that he wanted military 
tribunals to be one option for trying unlawful combatants 
against this country. He publicly tasked the Secretary of 
Defense with drafting the procedures to be employed. Since 
then, this Committee, the Armed Services Committee, numerous 
law professors, and just about every pundit with a microphone 
or typewriter have each expressed their opinion as to how those 
procedures should be written. That is consultation.
    And to show how serious the President is about this 
process, he reserved to himself the ultimate designation as to 
who will be tried in military tribunals, unlike FDR, who 
delegated the decision to members of our armed forces--and, I 
might add, had the approval of both the New York Times and the 
then-predecessor of the Washington Post in the process.
    Mr. Chairman, what the hearings over the last 2 weeks have 
shown is this: The vast weight of legal authority confirms the 
constitutionality of military tribunals. And if the issue to be 
analyzed is not the constitutionality of the tribunals but, 
rather, the fairness of the procedures to be used, then any 
criticism is entirely premature because the administration has 
not yet promulgated the procedures that will be employed.
    Any questions to Attorney General Ashcroft on this topic 
would be particularly pointless because it is Secretary of 
Defense Rumsfeld, not General Ashcroft, who is charged with 
drafting the procedures, although we all hope that they will 
consult with General Ashcroft in the process. And I personally 
believe they will.
    On the issue of detainees, what we have learned is that 
every person being detained has either been charged with a 
violation of U.S. law or being held pursuant to a decision of a 
Federal judge to issue a material witness warrant. Each of the 
detainees has had access to legal counsel or the right to 
access to legal counsel and has the right to challenge the 
grounds for his detention. Every detainee may, if he wishes, 
publicize his plight through legal counsel, friends, family, 
and/or the media. And while there has been some anecdotal 
evidence that the system has not worked flawlessly in the wake 
of the September 11th problems, there is absolutely no basis 
for believing that the Department of Justice has initiated any 
systematic policy to deprive detainees of their constitutional 
rights.
    Mr. Chairman, let me also take a moment to correct the 
record on one score. At the time we sent our letter to General 
Ashcroft, it was widely misreported in the press that I was 
displeased with the Attorney General and had ``demanded'' his 
appearance before the Committee. Nothing could be further from 
the truth. I for one have been extremely pleased with the 
degree to which he and the Department as a whole have been 
responsive to this Committee's oversight responsibilities and 
requests. Not only did the Attorney General promptly respond to 
our invitation to testify, he and the Department have 
diligently and thoroughly responded to all of the many 
questions and document requests that have been sent to them by 
the Committee throughout this year.
    And the Department has not just been responsive to our 
oversight efforts. They have been proactive as well. Last week, 
when the first in a series of DOJ--Department of Justice--
oversight hearings was convened, the Department of Justice was 
not initially invited to testify. Commendably, the Department 
of Justice reached out saying that they believed it was 
appropriate, given the fact that they were the subject of the 
hearing, that they also be participants at the hearing. 
Assistant Attorney General Michael Chertoff made himself 
available and provided testimony last week that I think we can 
all agree was very helpful to the Committee, and erudite 
testimony at that.
    The same thing happened this week, when the Department was 
again not invited to testify at Tuesday afternoon's oversight 
hearing. Again, the Department reached out to us and offered us 
more testimony which greatly contributed to the work of this 
Committee. I must say the candor and responsiveness exhibited 
by this Department of Justice in its dealing with this 
Committee is a refreshing departure from the responsiveness of 
the previous administration to our oversight responsibilities.
    As you all know, I was chairman of this Committee for 6 of 
those previous administration years, and I can tell you that 
getting responsive answers from the Department of Justice 
during that period was like pulling teeth, whether we were 
examining the previous administration's pardoning and release 
of 11 convicted terrorists affiliated with the FALN or the 
campaign finance irregularities probe and the famous 
conflicting views within the Justice Department on whether to 
appoint a special counsel to the Elian Gonzalez matter, to the 
last-minute pardons and so on.
    Given this previous experience, Attorney General Ashcroft's 
candor and responsiveness to this Committee are, in my opinion, 
pretty commendable and all the more commendable. I would like 
to thank you, General Ashcroft, for your honorable service to 
the country as Attorney General. I know that this Nation is a 
safer place due in large measure to what you and this 
administration is doing and basically to your tireless, honest 
efforts to rid us of crime.
    Mr. Chairman, I am pleased to see, and supportive of, this 
Committee exercising its oversight authority over the 
Department of Justice, and I trust that the Department of 
Justice will always be cooperative.
    I trust that we all agree as to the reason why it is 
important that we exercise this oversight function. It is, or 
at least it should be, to help the Department of Justice more 
effectively carry out its duties and to ensure that it does so 
consistently with congressional directives.
    Now, I hope that we can also agree, however, that there is 
a point at which aggressive oversight by this Committee becomes 
counterproductive. Certainly we do not want to reach a point 
where the senior leadership of the Department spends all of its 
time responding to inquiries from our Committee regarding the 
terrorism investigation and none of its time actually tracking 
down terrorists.
    And I know some might try to argue that this is a partisan 
criticism. Well, it is not. It is a bipartisan concern. I 
should note that one of our Senate Democratic colleagues 
yesterday properly observed in a press release that, ``They 
need to get off his back and let Attorney General Ashcroft do 
his job. Military tribunals have been used throughout history. 
The Supreme Court has twice upheld them as constitutional. Now 
we are at war, and we are talking about using military 
tribunals only for non-citizens. Why in the world would we try 
our own soldiers with this system of justice but not some 
foreigner who is trying to kill us? It is crazy. These nit-
pickers need to find another nit to pick.''
    I like that.
    [Laughter.]
    Senator Hatch. Let me continue. ``They need to stop 
protecting the rights of terrorists. This is about national 
security. This is about life and death.''
    Now, I don't mean in any way to suggest that we should not 
be performing appropriate oversight or to suggest ill motives 
behind this hearing today. I certainly don't mean to do that. 
And I appreciate working with my chairman on this matter.
    I should also note that these public hearings were not the 
only opportunity that the members of our Committee have had to 
pose inquiries to the Department of Justice. Several members 
have submitted numerous additional written questions following 
last week's hearing. The last time the Attorney General 
appeared before this Committee, Mr. Chairman, you alone 
directed 21 questions to him, with multiple sub-parts. By my 
own count, over the last 2 months you have submitted 12 letters 
to the Justice Department officials, requesting hundreds of 
pages of documents and posing dozens of questions, and that is 
your right to do.
    Now, General Ashcroft, I again want to thank you, and 
particularly the men and women of the Department of Justice for 
their herculean efforts over the past number of weeks, and 
especially over the last week and a half in responding to the 
oversight efforts of this Committee. We have had a lot of 
questions, and your responses over the past week have helped 
allay many initially alarmist and sometimes hysterical 
concerns.
    And let us not forget that these same men and women at the 
Department of Justice are the ones who are charged with the 
essential task of making sure that a day like September 11th 
never happens again on our soil or any action like those that 
occurred last week against us.
    Now, if my colleagues would like to grant additional 
authorities to the President or the Attorney General to aid in 
this war and to save American lives, I for one will be all 
ears, as long as such powers are consistent with our 
Constitution.
    Mr. Chairman, there is no real question remaining as to the 
constitutionality of the administration's initiatives to date. 
I want to thank you for your dedication to oversight, and I am 
hopeful that today's hearing will proceed as a fair examination 
into the administration's actions to stop terrorists and save 
American lives.
    I want to thank you for this hearing. I thank the Attorney 
General for his willingness to be present and for his 
responsiveness to our oversight requests. Thank you very much.
    [The prepared statement of Senator Hatch follows:]

Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah

    As you know, I was pleased to co-author, with you, the letter we 
sent to our good friend and former colleague, the Attorney General, 
asking him to come before this Committee to describe for us, and for 
the American people, some of the recent initiatives undertaken by the 
Administration to protect Americans from terrorist attacks. And I am 
gratified that General Ashcroft readily accepted our invitation and has 
taken time from his critical duties to be here today.
    Before beginning my statement, I would just like to correct the 
record on one score. At the time we sent our letter to General 
Ashcroft, it was widely misreported in the press that I was displeased 
with the Attorney General, and had ``demanded'' his appearance before 
the Committee. Nothing could be further from the truth.
    I joined the letter to General Ashcroft requesting his appearance 
because I believed it would be helpful to us, and to the American 
people, for the Attorney General to come before us and provide us with 
an update on the Department's efforts to combat terrorism and bring to 
justice those who helped to perpetrate the barbaric attacks of 
September 11th.
    After we sent the letter, Mr. Chairman, you made some comments to 
the press in reference to the letter that were critical of the Attorney 
General. Because I was a co-signatory on that letter, your subsequent 
statements were attributed to me as well.
    So that there will be no mistake, I would like to say here, in the 
presence of the Attorney General, that I have been extremely pleased 
with the degree to which he, and the Department as a whole, have been 
responsive to this Committee's oversight requests. Not only did the 
Attorney General promptly respond to our invitation to testify, he and 
the Department have diligently and thoroughly responded to all of the 
many questions and document requests that have been sent to them by 
this Committee throughout the year.
    And the Department has not just been responsive to our oversight 
efforts, they have been proactive as well. Last week, when the first in 
this series of DOJ oversight hearings was convened, the Department of 
Justice was not invited to testify. Commendably, the DOJ reached out, 
saying that they believed it was appropriate, given the fact that they 
were the subject of the hearing, that they also be participants at the 
hearing. Assistant Attorney General Michael Chertoff made himself 
available, and provided testimony last week that, I think we can all 
agree, was very helpful to the Committee.
    The same thing happened this week, when the Department was again 
not invited to testify at Tuesday afternoon's oversight hearing. Again, 
the Department reached out to us, and offered Assistant Attorney 
General Viet Dinh as a witness. And again, I think we can all agree, 
Mr. Dinh's testimony greatly contributed to the work of this Committee.
    I must say, the candor and responsiveness exhibited by this 
Department of Justice in its dealings with this Committee is a 
refreshing departure from the responsiveness of the previous 
Administration to our oversight requests.
    As you all know, I was Chairman of this Committee for the last six 
years of the previous Administration, and I can tell you that getting 
responsive answers from the Department of Justice during that period 
was like pulling teeth. Whether we were examining the previous 
administration's pardoning and release of 11 convicted terrorists 
affiliated with the FALN, or the campaign finance irregularities probe 
and the famous conflicting views within the Justice Department on 
whether to appoint a special counsel, to the Elian Gonzalez matter, to 
the last-minute pardons. . .and so on.
    I must say, given this previous experience, Attorney General 
Ashcroft's candor and responsiveness to this Committee are all the more 
commendable. I would like to thank him for his honorable service to 
this country as Attorney General. I know this nation is a safer place 
due, in large part, to his tireless, honest efforts to rid us of crime.
    Mr. Chairman, I am pleased to see, and supportive of, this 
Committee exercising its oversight authority over the Department of 
Justice.
    I trust that we all agree as to the reason why it is important that 
we exercise this oversight function: it is, or at least it should be, 
to help the DOJ more effectively carry out its duties, and to ensure 
that it does so consistently with Congressional directives.
    I hope that we can also agree, however, that there is a point at 
which aggressive oversight by this Committee becomes counter-
productive. Certainly, we do not want to reach a point where the senior 
leadership at the Department spends all of its time responding to 
inquiries from our Committee regarding the terrorism investigation, and 
none of its time actually tracking down terrorists.
    And, I know some might try to argue that this a partisan criticism. 
Well it is not, it is a bipartisan concern. I should note that one of 
our Senate Democratic colleagues yesterday properly observed in a press 
release that, ``They need to get off his back and let Attorney General 
Ashcroft do his job. Military tribunals have been used throughout 
history. The Supreme Court has twice upheld them as constitutional. 
Now, we're at war, and we're talking about using military tribunals 
only for non-citizens. Why in the world would we try our own soldiers 
with this system of justice but not some foreigner who is trying to 
kill us? It's crazy. These nit-pickers need to find another nit to 
pick. They need to stop protecting the rights of terrorists. This is 
about national security. This is about life and death.'' Now, I don't 
mean in any way to suggest that we should not be performing appropriate 
oversight, or to suggest ill motives behind this hearing today.
    My friends, in the last two weeks, we have heard from Justice 
Department officials, State Department officials, law professors, 
journalists, defense attorneys, and even an illegal alien from Yemen 
who was detained the week after the September 11th attacks 
with box-cutters in his possession. We have heard from two former 
Attorneys General of the United States, one from a Republican 
Administration and one from a Democratic Administration--who, I might 
add, both testified that they saw no Constitutional problem with any of 
the actions that are the subject of these hearings.
    Some of our friends in academia have not been shy in their 
criticism of the Administration. One professor whom the Committee 
invited to testify at last week's hearing compared the United States 
government to certain authoritarian regimes in Latin America and the 
totalitarian regime in China.
    Nor were these public hearings the only opportunity that the 
members of our Committee have had to pose inquiries to the Department 
of Justice. Several members have submitted numerous additional written 
questions following last week's hearing. The last time the Attorney 
General appeared before this committee, Mr. Chairman, you alone 
directed 21 questions to him, with multiple subparts. By my count, over 
the last 2 months you have submitted 12 letters to Justice Department 
officials, requesting hundreds of pages of documents and posing dozens 
of questions.
    Which brings us to today. Mr. Chairman, as I said earlier, a couple 
of weeks ago, I joined you in inviting the Attorney General to testify 
before us on these matters. I continue to believe it is appropriate to 
have General Ashcroft testify here today. These are important topics, 
and I know that General Ashcroft welcomes the opportunity to address 
any concerns that may be raised by the members of the Committee.
    General Ashcroft, I want to thank you, and particularly the men and 
women of the Department of Justice, for their Herculean efforts over 
the last week and a half, in responding to the oversight efforts of 
this Committee. We have had a lot of questions, and your responses over 
the past weeks have helped allay many initially alarmist and hysterical 
concerns.
    And let us not forget, these same men and women at the Department 
of Justice are the ones who are charged with the essential task of 
making sure that a day like September 11th never happens 
again.
    As we continue to hold these hearings, I would hope that we don't 
forget our own essential task of confirming the President's nominees to 
the positions so important to winning the war against terrorism, and to 
ensuring that we have justice and liberties. As you know, there has 
been increasing criticism from around the country for this Committee to 
take action on the President's nominees--both for judgeships and for 
important posts in the Administration. Even the Washington Post, has 
criticized this Committee's failure to act on these important judicial 
nominations, particularly given the vacancy crisis we face in our 
judiciary today. As we all recognize, justice delayed is justice 
denied. This was not a digression, but I think that our duty to act on 
the President's nominees is at least as critical as our duties of 
oversight and I would simply hope that we will be as diligent in that 
role in the coming weeks and months as we are with our oversight 
responsibility.
    Mr. Chairman, what the hearings over the last two weeks have shown 
is this: the vast weight of legal authority confirms the 
constitutionality of military tribunals. And, if the issue to be 
analyzed is not the constitutionality of the tribunals, but rather the 
fairness of the procedures to be used, then any criticism is entirely 
premature, because the Administration has not yet promulgated the 
procedures that will be employed. Any questions to Attorney General 
Ashcroft on this topic would be particularly pointless, because it is 
Secretary of Defense Rumsfeld, not General Ashcroft, who is charged 
with drafting the procedures.
    On the issue of detainees, what we have learned is that every 
person being detained has either been charged with a violation of U.S. 
law, or is being held pursuant to the decision of a federal judge to 
issue a material witness warrant. Each of the detainees has had access 
to legal counsel and has the right to challenge the grounds for his 
detention. Every detainee may, if he wishes, publicize his plight, 
through legal counsel, friends, family, and/or the media. While there 
has been anecdotal evidence that the system has not worked flawlessly 
in the wake of September 11th, there is absolutely no basis 
for believing that the Department of Justice has initiated any 
systematic policy to deprive detainees of their Constitutional rights.
    Now if my colleagues would like to grant additional authorities to 
the President or the Attorney General, to aid in this war, and to save 
American lives, then I am all ears--as long as such powers are 
consistent with our Constitution.
    Mr. Chairman, a week ago the airwaves were filled with alarmist 
rhetoric, charging that the Administration's actions had trampled the 
Constitution. During the course of these oversight hearings, as expert 
after expert has affirmed the constitutionality of these measures, I 
have noticed a change in the tone of the criticisms being leveled at 
the Administration.
    The principal complaints we now hear are not that the measures are 
unconstitutional, but rather that the Justice Department has engaged in 
insufficient consultation with Congress, or with this Committee, before 
announcing them.
    I have a couple of observations on this topic.
    First, let's put this issue in perspective. We are at war. We are 
battling an enemy committed to the absolute, unconditional destruction 
of our society. The principal means that the enemy employs toward this 
goal is the killing of our civilians in their homes and their places of 
business. To the extent that this war is being waged on American soil, 
the Attorney General is one of our leaders in this war. I would hope 
that, in this time of crisis, we could all check our egos, and for the 
good of the country, look at the merits of these proposals rather than 
the manner in which they are packaged.
    I'm not saying that we don't have a solemn obligation to assess the 
Department's actions to ensure that they are both effective and 
sufficiently protective of our civil liberties. But do any of the 
members of this Committee really believe that, in this time of crisis, 
the American people--those who live outside the Capital Beltway--really 
care whether the President, the Secretary of Defense, or the Attorney 
General took the time to pick up the telephone and call us prior to 
implementing these emergency measures? I implore my colleagues--let's 
keep our focus where it matters--on protecting our citizens.
    Certainly, the American people are not interested in watching us 
quibble about whether we should provide more rights than the 
Constitution requires to the criminals and terrorists who are devoted 
to killing our people. They are interested in making sure we protect 
our country against terrorist attacks.
    To those of you who say that our input is necessary to make sure 
that these measures are done right, I say: look around, look at the 
actions of the President, what do you think is happening?
    President Bush could have proceeded as President Franklin D. 
Roosevelt did in 1942. He could have privately called the Secretary of 
Defense and had him start working, confidentially, on procedures for 
military tribunals. Three months from now, President Bush could have 
announced: we have captured some terrorists in Afghanistan, we will try 
them by military tribunal, and here are the procedures for the 
tribunals that have been established by the Secretary of Defense.
    President Bush did not proceed that way. Instead, he--responsibly 
in my opinion--announced that he wanted military tribunals to be one 
option for trying unlawful combatants against this country. He publicly 
tasked the Secretary of Defense with drafting the procedures to be 
employed. Since then, this Committee, the Armed Services Committee, 
numerous law professors, and just about every pundit with a microphone 
or a typewriter have each expressed their opinion as to how those 
procedures should be written. That is consultation.
    And to show how serious the President is about this process, he 
reserved to himself the ultimate designation as to who will be tried in 
military tribunals--unlike FDR, who delegated the decision to members 
of our armed forces.
    Mr. Chairman, there is no real question remaining as to the 
constitutionality of the Administration's initiatives to date. I thank 
you for your dedication to oversight, and I am hopeful that today's 
hearing will proceed as a fair examination into the Administration's 
actions to stop terrorists and save American lives. I thank you for 
this hearing and I thank the Attorney General for his willingness to be 
present and for his responsiveness to our oversight requests.

    Chairman Leahy. General Ashcroft, again, I appreciate your 
comment yesterday when we were talking that you welcomed the 
opportunity to be here. I think it is important that you are 
here. I appreciate that you felt the same way. The floor is 
yours.

STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED 
                             STATES

    Attorney General Ashcroft. Thank you, Mr. Chairman, Senator 
Hatch, and members of this Committee. I am grateful for the 
opportunity of appearing to testify before you today. It is a 
pleasure to be back in the United States Senate, and I am 
grateful.
    On the morning of September 11th, as the United States came 
under attack, I was in an airplane with several members of the 
Justice Department en route to Milwaukee, in the skies over the 
Great Lakes. By the time we could return to Washington, 
thousands of people had been murdered at the World Trade 
Center; 189 more were dead at the Pentagon; 44 had died in the 
crash to the ground in Pennsylvania. From that moment, at the 
command of the President of the United States, I began to 
mobilize the resources of the Department of Justice toward one 
single, overarching, and overriding objective: to save innocent 
lives from further acts of terrorism.
    America's campaign to save innocent lives from terrorists 
is now 87 days old. It has brought me back to this Committee to 
report to you in accordance with Congress' oversight role. I 
welcome this opportunity to clarify for you and for the 
American people how the Justice Department is working to 
protect American lives while preserving American liberties.
    Since those first terrible hours of September the 11th, 
America has faced a choice that is as stark as the images that 
linger of that morning. One option is to call September 11th a 
fluke, to believe it could never happen again, and to live in a 
dream world that requires us to do nothing differently. The 
other option is to fight back, to summon all our strength and 
all of our resources and devote ourselves to better ways to 
identify, disrupt, and dismantle terrorist networks.
    Under the leadership of President Bush, America has made 
the choice to fight terrorism--not just for ourselves but for 
all civilized people. Since September 11, through dozens of 
warnings to law enforcement, a deliberate campaign of terrorist 
disruption, tighter security around potential targets, and a 
preventative campaign of arrest and detention of lawbreakers, 
America has grown stronger--and safer--in the face of 
terrorism.
    Thanks to the vigilance of law enforcement and the patience 
of the American people, we have not suffered another major 
terrorist attack. Still, we cannot--we must not--allow 
ourselves to grow complacent. The reasons are apparent to me 
each morning. My day begins with a review of the threats to 
Americans and to American interests that have been received in 
the previous 24 hours. If ever there were proof of the 
existence of evil in the world, it is in the pages of these 
reports. They are a chilling daily chronicle of hatred of 
Americans by fanatics who seek to extinguish freedom, enslave 
women, corrupt education, and to kill Americans wherever and 
whenever they can.
    The terrorist enemy that threatens civilization today is 
unlike any we have ever known. It slaughters thousands of 
innocents--a crime of war and a crime against humanity. It 
seeks weapons of mass destruction and threatens their use 
against America. No one should doubt the intent, nor the depth, 
of its continuing, destructive hated.
    Terrorist operatives infiltrate our communities--plotting, 
planning, waiting to kill again. They enjoy the benefits of our 
free society even as they commit themselves to our destruction. 
They exploit our openness--not randomly or haphazardly, but by 
deliberate, premeditated design.
    This is a seized Al Qaeda training manual--a ``how-to'' 
guide for terrorists--that instructs enemy operatives in the 
art of killing in a free society. Prosecutors first made this 
manual public in the trial of the Al Qaeda terrorist who bombed 
U.S. embassies in Africa. We are posting several Al Qaeda 
lessons from this manual on our Web site today so that 
Americans can know about the enemy.
    In this manual, Al Qaeda terrorists are now told how to use 
America's freedom as a weapon against us. They are instructed 
to use the benefits of a free press--newspapers, magazines, 
broadcasts--to stalk and to kill victims. They are instructed 
to exploit our judicial process for the success of their 
operations. Captured terrorists are taught to anticipate a 
series of questions from authorities and, in each response, to 
lie--to lie about who they are, to lie about what they are 
doing, to lie about who they know in order for the operation to 
achieve its objective. Imprisoned terrorists are instructed in 
this manual to concoct stories of torture and mistreatment at 
the hands of our officials. They are directed to take advantage 
of any contact with the outside world. This manual instructs 
them to, and I quote, ``communicate with brothers outside 
prison and exchange information that may be helpful to them in 
their work. The importance of mastering the art of hiding 
messages is self-evident here.''
    Mr. Chairman and members of this Committee, we are at war 
with an enemy that abuses individual rights as it abuses 
jetliners. It abuses those rights to make weapons of them with 
which to kill Americans. We have responded by redefining the 
mission of the Department of Justice. Defending our Nation and 
its citizens against terrorist attacks is now our first and 
overriding priority.
    We have launched the largest, most comprehensive criminal 
investigation in world history to identify the killers of the 
September 11th tragedy and to prevent further terrorist 
attacks. Four thousand FBI agents are engaged with other 
international counterparts in an unprecedented worldwide effort 
to detect, disrupt, and dismantle terrorist organizations.
    We have created a national task force at the FBI to 
centralize control and information sharing in our 
investigation. This task force has investigated hundreds of 
thousands of leads, conducted over 500 searches, interviewed 
thousands of witnesses, and obtained numerous court-authorized 
surveillance orders. Our prosecutors and agents have collected 
information and evidence from countries throughout the Middle 
East and Europe.
    Immediately following the September 11th attacks, the 
Bureau of Prisons acted swiftly to intensify security 
precautions in connection with Al Qaeda and other terrorist 
inmates, increasing perimeter security at a number of key 
facilities.
    We have sought and received additional tools from Congress 
for which we are grateful. You have cited them, and they were 
important. Already we have begun to utilize many of these 
tools. Within hours of the passage of the USA PATRIOT Act, we 
made use of its provisions to begin enhanced information 
sharing between the law enforcement and intelligence 
communities. We have used the provisions allowing nationwide 
search warrants for e-mail and subpoenas for payment 
information. And we have used the Act to place those who access 
the Internet through cable companies on the same footing as 
other individuals.
    Just yesterday, at my request, the State Department 
designated 39 entities as terrorist organizations pursuant to 
the USA PATRIOT Act.
    We have waged a deliberate campaign of arrest and detention 
to remove suspected terrorists who violate the law from our 
streets. Currently, we have brought criminal charges against 
110 individuals, of whom 60 are in Federal custody. The INS has 
detained 563 individuals on immigration violations, has in 
detention today.
    We have investigated more than 250 incidents of retaliator 
violence and threats against Arab Americans, Muslim Americans, 
Sikh Americans, and South Asian Americans.
    Since September the 11th, the Customs Service and Border 
Patrol have been at their highest state of alert. All vehicles 
and persons entering this country are subjected to the highest 
level of scrutiny. Working with the State Department, we have 
imposed new screening requirements on certain applicants for 
non-immigrant visas. At the direction of the President, we have 
created a Foreign Terrorist Tracking Task Force to ensure that 
we do everything we can to prevent terrorists from entering the 
country and to locate and remove those who are already here.
    We have prosecuted to the fullest extent of the law 
individuals who waste precious law enforcement resources 
through anthrax hoaxes.
    We have offered non-citizens willing to come forward with 
valuable information a chance to live in this country and one 
day to become citizens.
    We have forged new cooperative agreements with Canada to 
protect our borders and the economic prosperity that our 
borders, and the appropriate maintenance of the flow of 
commerce across those borders, sustain.
    We have embarked on a wartime reorganization of the 
Department of Justice. We are transferring resources and 
personnel to the field offices where citizens are served and 
protected. The INS is being restructured to better perform its 
service and border security responsibilities. Under Director 
Bob Mueller, the FBI is undergoing a historic reorganization to 
put the prevention of terrorism at the center of its law 
enforcement and national security efforts.
    Outside Washington, we are forging new relationships of 
cooperation with State and local law enforcement.
    We have created 93 Anti-Terrorism Task Forces across the 
country in each U.S. Attorney's district to integrate the 
communications and activities of State, local, and Federal law 
enforcement.
    In all these ways and more, the Department of Justice has 
sought to prevent terrorism with reason, careful balance, and 
excruciating attention to detail. Some of our critics, I regret 
to say, have shown less affection for detail. Their bold 
declarations of so-called facts have quickly dissolved, upon 
inspection, into vague conjecture. Charges of kangaroo courts 
and shredding the Constitution give new meaning to the term 
``fog of war.''
    Since lives and liberties depend upon clarity, not 
obfuscation, and upon reason, not hyperbole, let me take this 
opportunity to be clear: Each action taken by the Department of 
Justice, as well as the war crimes commissions considered by 
the President and the Department of Defense, is carefully drawn 
to target a narrow class of individuals--terrorists. Our legal 
powers are targeted at terrorists. Our investigation is focused 
on terrorists. Our prevention strategy targets the terrorist 
threat.
    Since 1983, the United States Government has defined 
terrorists as those who perpetrate premeditated, politically 
motivated violence against non-combatant targets. My message to 
America this morning, then, is this: If you fit this definition 
of a terrorist, fear the United States, for you will lose your 
liberty.
    We need honest, reasoned debate, not fear-mongering. To 
those who pit Americans against immigrants and citizens against 
non-citizens, to those who scare peace-loving people with 
phantoms of lost liberty, my message is this: Your tactics only 
aid terrorists, for they erode our national unity and diminish 
our resolve. They give ammunition to America's enemies and 
pause to America's friends. They encourage people of good will 
to remain silent in the face of evil.
    Our efforts have been crafted carefully to avoid infringing 
on constitutional rights while saving American lives. We have 
engaged in a deliberate campaign of arrest and detention of 
lawbreakers. All persons being detained have the right to 
contact their lawyers and their families. Our respect for their 
privacy and concern for saving lives motivates us not to 
publicize the names of those detained.
    We have the authority to monitor the conversations of 16 of 
the 158,000 Federal inmates and their attorneys because we 
suspect these communications could facilitate acts of 
terrorism. Each such prisoner has been told in advance his 
conversations will be monitored. None of the information that 
is protected by attorney-client privilege may be used for 
prosecution. Information will only be used to stop impending 
terrorist acts and to save American lives.
    We have asked a very limited number of individuals--
visitors to our country holding passports from countries with 
active Al Qaeda operations--to speak voluntarily to law 
enforcement. We are forcing them to do nothing. We are merely 
asking them to do the right thing: to willingly disclose 
information they may have of terrorist threats to the lives and 
safety of all people in the United States.
    Throughout all our activities since September the 11th, we 
have kept Congress informed of our continuing efforts to 
protect the American people. Beginning with a classified 
briefing by Director of the FBI Mueller and me on the very 
evening of September 11th, the Justice Department has briefed 
members of the House, the Senate, and their staffs on more than 
100 occasions.
    We have worked with Congress in the belief and the 
recognition that no single branch of Government alone can stop 
terrorism. We have consulted with members out of respect for 
the separation of powers that is the basis of our system of 
Government. However, Congress' power of oversight is not 
without limits. The Constitution specifically delegates to the 
President the authority to, and I quote, ``take care that the 
laws are faithfully executed.'' And perhaps most importantly, 
the Constitution vests the President with the extraordinary and 
sole authority as Commander-in-Chief to lead our Nation in 
times of war.
    Mr. Chairman and members of this Committee, not long ago I 
had the privilege of sitting where you now sit. I have the 
greatest reverence and respect for the constitutional 
responsibilities you shoulder. I will continue to consult with 
Congress so that you may fulfill your constitutional 
responsibilities. In some areas, however, I cannot and will not 
consult with you.
    The advice I give to the President, whether in his role as 
Commander-in-Chief when at war or in any other capacity, is 
privileged and confidential. I cannot and will not divulge the 
contents, the context, or even the existence of such advice to 
anyone--including Congress--unless the President instructs me 
so to do. I cannot and will not divulge information, nor do I 
believe that anyone here would wish me to divulge information, 
that would damage the national security of the United States, 
the safety of its citizens, or our efforts to ensure the same 
in an ongoing investigation.
    As Attorney General, it is my responsibility--at the 
direction of the President--to exercise those core executive 
powers the Constitution so designates. The law enforcement 
initiatives undertaken by the Department of Justice, those 
individuals we arrest, detain, or seek to interview, fall under 
these core executive powers. In addition, the President's 
authority to establish war crimes commissions arises out of his 
power as Commander-in-Chief. For centuries, Congress has 
recognized this authority, and the Supreme Court has never held 
that any Congress may limit it.
    In accordance with over 200 years of historical and legal 
precedent, the executive branch is now exercising its core 
constitutional powers in the interest of saving the lives of 
Americans. I trust that Congress will respect the proper limits 
of executive branch consultation that I am duty-bound to 
uphold. I trust, as well, that Congress will respect this 
President's authority to wage war on terrorism and to defend 
our Nation and its citizens with all the power vested in him by 
the Constitution and entrusted to him by the American people.
    I thank you for your willingness to allow me to complete 
this statement.
    [The prepared statement of General Ashcroft follows.]

   Statement of Hon. John Ashcroft, Attorney General, Department of 
                                Justice

    Mr. Chairman, Senator Hatch, members of the Judiciary Committee, 
thank you for this opportunity to testify today. It is a pleasure to be 
back in the United States Senate.
    On the morning of September 11, as the United States came under 
attack, I was in an airplane with several members of the Justice 
Department en route to Milwaukee, in the skies over the Great Lakes. By 
the time we could return to Washington, thousands of people had been 
murdered at the World Trade Center. 189 were dead at the Pentagon. 
Forty-four had crashed to the ground in Pennsylvania. From that moment, 
at the command of the President of the United States, I began to 
mobilize the resources of the Department of Justice toward one single, 
over-arching and over-riding objective: to save innocent lives from 
further acts of terrorism.
    America's campaign to save innocent lives from terrorists is now 87 
days old. It has brought me back to this committee to report to you in 
accordance with Congress's oversight role. I welcome this opportunity 
to clarify for you and the American people how the Justice Department 
is working to protectAmerican lives while preserving American 
liberties.
    Since those first terrible hours of September 11, America has faced 
choice that is as stark as the images that linger of that morning. One 
option is to call September 11 a fluke, to believe it could never 
happen again, and to live in a dream world that requires us to do 
nothing differently. The other option is to fight back, to summon all 
our strength and all our resources and devote ourselves to better ways 
to identify, disrupt and dismantle terrorist networks.
    Under the leadership of President Bush, America has made the choice 
to fight terrorism--not just for ourselves but for all civilized 
people. Since September 11, through dozens of warnings to law 
enforcement, a deliberate campaign of terrorist disruption, tighter 
security around potential targets, and a preventative campaign of 
arrest and detention of lawbreakers, America has grown stronger--and 
safer--in the face of terrorism.
    Thanks to the vigilance of law enforcement and the patience of the 
American people, we have not suffered another major terrorist attack. 
Still, we cannot--we must not--allow ourselves to grow complacent. The 
reasons are apparent to me each morning. My day begins with a review of 
the threats to Americans and American interests that were received in 
the previous 24 hours. If ever there were proof of the existence of 
evil in the world, it is in the pages of these reports. They are a 
chilling daily chronicle of hatred of America by fanatics who seek to 
extinguish freedom, enslave women, corrupt education and to kill 
Americans wherever and whenever they can.
    The terrorist enemy that threatens civilization today is unlike any 
we have ever known. It slaughters thousands of innocents--a crime of 
war and a crime against humanity. It seeks weapons of mass destruction 
and threatens their use against America. No one should doubt the 
intent, nor the depth, of its consuming, destructive hatred.
    Terrorist operatives infiltrate our communities--plotting, planning 
and waiting to kill again. They enjoy the benefits of our free society 
even as they commit them selves to our destruction. They exploit our 
openness--not randomly or haphazardly--but by deliberate, premeditated 
design.
    This is a seized al Qaeda training manual--a ``how-to'' guide for 
terrorists- that instructs enemy operatives in the art of killing in a 
free society. Prosecutors first made this manual public in the trial of 
the al Qaeda terrorists who bombed U.S. embassies in Africa. We are 
posting several al Qaeda lessons from this manual on our website today 
so Americans can know our enemy.
    In this manual, al Qaeda terrorists are told how to use America's 
freedom as a weapon against us. They are instructed to use the benefits 
of a free press- newspapers, magazines and broadcasts--to stalk and 
kill their victims. They are instructed to exploit our judicial process 
for the success of their operations. Captured terrorists are taught to 
anticipate a series of questions from authorities and, in each 
response, to lie--to lie about who they are, to lie about what they are 
doing and to lie about who they know in order for the operation to 
achieve its objective. Imprisoned terrorists are instructed to concoct 
stories of torture and mistreatment at the hands of our officials. They 
are directed to take advantage of any contact with the outside world 
to, quote,''communicate with brothers outside prison and exchange 
information that may be helpful to them in their work. The importance 
of mastering the art of hiding messages is self-evident here.''
    Mr. Chairman and members of the committee, we are at war with an 
enemy who abuses individual rights as it abuses jet airliners: as 
weapons with which to kill Americans. We have responded by redefining 
the mission of the Department of Justice. Defending our nation and its 
citizens against terrorist attacks is now our first and overriding 
priority.
    We have launched the largest, most comprehensive criminal 
investigation in world history to identify the killers of September 11 
and to prevent further terrorist attacks. Four thousand FBI agents are 
engaged with their international counterparts in an unprecedented 
worldwide effort to detect, disrupt and dismantle terrorist 
organizations.
    We have created a national task force at the FBI to centralize 
control and information sharing in our investigation. This task force 
has investigated hundreds of thousands of leads, conducted over 500 
searches, interviewed thousands of witnesses and obtained numerous 
court--authorized surveillance orders. Our prosecutors and agents have 
collected information and evidence from countries throughout Europe and 
the Middle East.
    Immediately following the September 11 attacks, the Bureau of 
Prisons acted swiftly to intensify security precautions in connection 
with all al Qaeda and other terrorist inmates, increasing perimeter 
security at a number of key facilities.
    We have sought and received additional tools from Congress. 
Already, we have begun to utilize many of these tools. Within hours of 
passage of the USA PATRIOT Act, we made use of its provisions to begin 
enhanced information sharing between the law-enforcement and 
intelligence communities. We have used the provisions allowing 
nationwide search warrants for e-mail and subpoenas for payment 
information. And we have used the Act to place those who access the 
Internet through cable companies on the same footing as everyone else.
    Just yesterday, at my request, the State Department designated 39 
entities as terrorist organizations pursuant to the USA PATRIOT Act.
    We have waged a deliberate campaign of arrest and detention to 
remove suspected terrorists who violate the law from our streets. 
Currently, we have brought criminal charges against 110 individuals, of 
whom 60 are in federal custody. The INS has detained 563 individuals on 
immigration violations.
    We have investigated more than 250 incidents of retaliatory 
violence and threats against Arab Americans, Muslim Americans, Sikh 
Americans and South Asian Americans.
    Since September 11, the Customs Service and Border Patrol have been 
at their highest state of alert. All vehicles and persons entering the 
country are subjected to the highest level of scrutiny. Working with 
the State Department, we have imposed new screening requirements on 
certain applicants for non-immigrant visas. At the direction of the 
President, we have created a Foreign Terrorist Tracking Task Force to 
ensure that we do everything we can to prevent terrorists from entering 
the country, and to locate and remove those who already have.
    We have prosecuted to the fullest extent of the law individuals who 
waste precious law enforcement resources through anthrax hoaxes.
    We have offered non-citizens willing to come forward with valuable 
information a chance to live in this country and one day become 
citizens.
    We have forged new cooperative agreements with Canada to protect 
our common borders and the economic prosperity they sustain.
    We have embarked on a wartime reorganization of the Department of 
Justice. We are transferring resources and personnel to the field 
offices where citizens are served and protected. The INS is being 
restructured to better perform its service and border security 
responsibilities. Under Director Bob Mueller, the FBI is undergoing an 
historic reorganization to put the prevention of terrorism at the 
center of its law enforcement and national security efforts.
    Outside Washington, we are forging new relationships of cooperation 
with state and local law enforcement. We have created 93 Anti-Terrorism 
Task Forces--one in each U.S. Attorney's district--to integrate the 
communications and activities of local, state and federal law 
enforcement.
    In all these ways and more, the Department of Justice has sought to 
prevent terrorism with reason, careful balance and excruciating 
attention to detail. Some of our critics, I regret to say, have shown 
less affection for detail. Their bold declarations of so-called fact 
have quickly dissolved, upon inspection, into vague conjecture. Charges 
of ``kangaroo courts'' and ``shredding the Constitution'' give new 
meaning to the term, ``the fog of war.''
    Since lives and liberties depend upon clarity, not obfuscation, and 
reason, not hyperbole, let me take this opportunity today to be clear: 
Each action taken by the Department of Justice, as well as the war 
crimes commissions considered by the President and the Department of 
Defense, is carefully drawn to target a narrow class of individuals--
terrorists. Our legal powers are targeted at terrorists. Our 
investigation is focused on terrorists. Our prevention strategy targets 
the terrorist threat.
    Since 1983, the United States government has defined terrorists as 
those who perpetrate premeditated, politically motivated violence 
against noncombatant targets. My message to America this morning, then, 
is this: If you fit this definition of a terrorist, fear the United 
States, for you will lose your liberty.
    We need honest, reasoned debate; not fear mongering. To those who 
pit Americans against immigrants, and citizens against non-citizens; to 
those who scare peace-loving people with phantoms of lost liberty; my 
message is this: Your tactics only aid terrorists--for they erode our 
national unity and diminish our resolve. They give ammunition to 
America's enemies, and pause to America's friends. They encourage 
people of good will to remain silent in the face of evil.
    Our efforts have been carefully crafted to avoid infringing on 
constitutional rights while saving American lives. We have engaged in a 
deliberate campaign of arrest and detention of law breakers. All 
persons being detained have the right to contact their lawyers and 
their families. Out of respect for their privacy, and concern for 
saving lives, we will not publicize the names of those detained.
    We have the authority to monitor the conversations of 16 of the 
158,000 federal inmates and their attorneys because we suspect that 
these communications are facilitating acts of terrorism. Each prisoner 
has been told in advance his conversations will be monitored. None of 
the information that is protected by attorney-client privilege may be 
used for prosecution. Information will only be used to stop impending 
terrorist acts and save American lives.
    We have asked a very limited number of individuals--visitors to our 
country holding passports from countries with active Al Qaeda 
operations--to speak voluntarily to law enforcement. We are forcing 
them to do nothing. We are merely asking them to do the right thing: to 
willingly disclose information they may have of terrorist threats to 
the lives and safety of all people in the United States.
    Throughout all our activities since September 11, we have kept 
Congress informed of our continuing efforts to protect the American 
people. Beginning with a classified briefing by Director Mueller and me 
on the very evening of September 11, the Justice Department has briefed 
members of the House, the Senate and their staffs on more than 100 
occasions.
    We have worked with Congress in the belief and recognition that no 
single branch of government alone can stop terrorism. We have consulted 
with members out of respect for the separation of powers that is the 
basis of our system of government. However, Congress' power of 
oversight is not without limits. The Constitution specifically 
delegates to the President the authority to ``take care that the laws 
are faithfully executed.'' And perhaps most importantly, the 
Constitution vests the President with the extraordinary and sole 
authority as Commander-in-Chief to lead our nation in times of war.
    Mr. Chairman and members of the committee, not long ago I had the 
privilege of sitting where you now sit. I have the greatest reverence 
and respect for the constitutional responsibilities you shoulder. I 
will continue to consult with Congress so that you may fulfill your 
constitutional responsibilities. In some areas, however, I cannot and 
will not consult you.
    The advice I give to the President, whether in his role as 
Commander-in-Chief or in any other capacity, is privileged and 
confidential. I cannot and will not divulge the contents, the context, 
or even the existence of such advice to anyone--including Congress--
unless the President instructs me to do so. I cannot and will not 
divulge information, nor do I believe that anyone here would wish me to 
divulge information, that will damage the national security of the 
United States, the safety of its citizens or our efforts to ensure the 
same in an ongoing investigation.
    As Attorney General, it is my responsibility--at the direction of 
the President--to exercise those core executive powers the Constitution 
so designates. The law enforcement initiatives undertaken by the 
Department of Justice, those individuals we arrest, detain or seek to 
interview, fall under these core executive powers. In addition, the 
President's authority to establish war-crimes commissions arises out of 
his power as Commander in Chief. For centuries, Congress has recognized 
this authority and the Supreme Court has never held that any Congress 
may limit it.
    In accordance with over two hundred years of historical and legal 
precedent, the executive branch is now exercising its core 
Constitutional powers in the interest of saving the lives of Americans. 
I trust that Congress will respect the proper limits of Executive 
Branch consultation that I am duty-bound to uphold. I trust, as well, 
that Congress will respect this President's authority to wage war on 
terrorism and defend our nation and its citizens with all the power 
vested in him by the Constitution and entrusted to him by the American 
people.
    Thank you.

    Chairman Leahy. No, I think it is important you do, and I 
again appreciate you doing that.
    Senator Thurmond has asked to make a short statement of 
support, and with no objection from the other members to the 
senior member of this Committee, I would yield to Senator 
Thurmond.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Thurmond. Mr. Chairman, I am pleased that you are 
holding this important hearing on the President's law 
enforcement initiatives in the war against terrorism. This 
Committee has an important oversight role, and we must ensure 
that the actions of the Government are in accordance with the 
Constitution.
    Mr. Attorney General, thank you for taking time from your 
busy schedule to be here today. You have done an excellent job 
of leading the Department of Justice during these difficult 
times, and I thank you for your faithful service to our Nation.
    I believe that the criticism directed towards the 
administration is unfounded. The duty to prevent future attacks 
is a great responsibility. The President has responded with 
actions that will protect American lives while preserving civil 
liberties.
    Mr. Chairman, I believe that the policies of the 
administration are reasonable law enforcement tools and are 
constitutional. The efforts of the President and the Attorney 
General will further our war against terrorism. I look forward 
to hearing the testimony of the Attorney General today.
    Thank you very much.
    [The prepared statement of Senator Thurmond follows:]

  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 important hearing on the 
President's law enforcement initiatives in the war against terrorism. 
This committee has an important oversight role, and we must ensure that 
the actions of the government are in accordance with the Constitution.
    Mr. Attorney General, thank you for taking time from your busy 
schedule to be here today. You have done an excellent job of leading 
the Department of Justice during these difficult times, and I thank you 
for your faithful service to our Nation.
    I believe that the criticism directed towards the Administration is 
unfounded. The duty to prevent future attacks is a great 
responsibility. The President has responded with actions that will 
protect American lives while preserving civil liberties.
    The President and the Attorney General are employing a variety of 
tools in the fight against terrorism, such as the use of military 
commissions and the current detention of suspected terrorists. I 
believe that these policies are reasonable law enforcement tools that 
will further our efforts to rid the world of terrorism.
    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 use 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 Phillippines 
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. '? 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 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.
    I would also like to point out that the President, in issuing this 
order, does not intend to convene commissions that render unfair 
judgments. On the contrary, the order specifies that a ``full and 
fair'' trial must be given. If used appropriately, 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.
    The detention policy of the Department of Justice has also been 
heavily criticized. I believe that the detention policy is not only 
necessary for our national security, but is also a legitimate use of 
power under the Constitution. Two aspects of the policy have been 
highly criticized: the detentions themselves and the lack of public 
information released on detainees. We have heard the stories of 
detainees that would, if true, cause us concern. We should take these 
stories seriously, and we must ensure that all detainees have access to 
lawyers and are treated properly. However, we must not allow isolated 
incidents to lead us to the conclusion that the government is 
shamelessly violating the civil rights of detainees.
    Congress and the Administration have worked together to fashion a 
sensible policy on the detention of those charged with immigration 
violations or criminal laws. Once a person is taken into custody, the 
USA PATRIOT Act provides that the Attorney General may certify that he 
has reasonable grounds to believe that someone is a terrorist or 
security threat. The Attorney General then has seven days to charge the 
alien with an immigration or criminal violation. Upon the expiration of 
seven days, he must release the alien or charge him with a violation of 
law. This procedure provides for review in Federal court.
    The Attorney General is using material witness warrants to hold all 
other detainees. Some critics question the practice of holding people 
as material witnesses, but the government must balance its need for 
crucial information with the liberty interests of detainees. 
Furthermore, current law allows for the detention of material witnesses 
for a ``reasonable period of time'' under 18 U.S.C. ' 3144. It is 
important to remember that the government's power of detention is not 
unchecked. Detainees have recourse to review by Federal courts.
    As with the use of military commissions, Congress in this instance 
should give deference to the President's powers as Commander-in-Chief. 
The detention of suspects and witnesses serves not only law enforcement 
objectives but national security objectives as well. We are involved in 
a war against terrorism, and we should be sensitive to the national 
security concerns regarding the detentions. In fact, the Supreme Court 
has acknowledged that there may be circumstances where national 
security concerns call for deference to the executive branch's use of 
detentions. Zadvydas v. Davis, 121 S. Ct. 2491 (2001).
    Some critics have also raised concerns about the Department of 
Justice's failure to release extensive details regarding detainees. As 
former Attorney General Barr indicated in his testimony before this 
committee last week, the Supreme Court has never interpreted the 
Constitution to require that all details of a law enforcement 
investigation be disclosed. For example, grand jury proceedings are 
kept secret so that the integrity of a criminal investigation is not 
tarnished. And even more relevant, affidavits in support of arrest, 
material witness warrants, and indictments are commonly filed with the 
court under seal if their disclosure would compromise an investigation.
    Under current circumstances, detailed information about the 
detainees could provide crucial information to the cells of the al 
Qaida terrorist network. If terrorist cells operating in this Country 
were able to determine how their movements were being detected, they 
would adjust their operations in order to avoid the detection. We must 
remember that we are at war, and the United States is still vulnerable 
to terrorist attacks. The United States government has a legitimate 
need for secrecy in its effort to disrupt the functioning of al Qaida.
    There is a misconception that the identities of all charged persons 
is secret. This is not so. According to Assistant Attorney General 
Michael Chertoff's testimony before this committee last week, the 
identity of every person arrested on a criminal charge is public 
information. Additionally, the government is not preventing a detained 
individual from identifying himself. There is nothing to indicate that 
detainees are being held in secret.
    By not providing a list of detainees to the public, DOJ is actually 
protecting the privacy of the detainees. Because the detention itself 
is not secret, an individual detainee would not benefit from the 
publication of his name. In fact, a list could only serve to invade the 
privacy interests of the detainees by making their detention available 
to anyone. If such a list were published, there would surely be 
criticism that this list served no purpose but to smear the reputations 
of people caught up in the investigation.
    Mr. Chairman, I am pleased that we are carefully considering the 
President's efforts to fight terrorism. 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 to protect the American people. I 
hope that my colleagues will join me in supporting the Administration's 
efforts to combat terror.

    Chairman Leahy. Thank you.
    General you have stated that the authority for the Military 
Order arises out of the President's position as Commander-in-
Chief, and the Supreme Court has never held that the Congress 
may limit it. But the fact is that the Supreme Court has never 
upheld the President's authorities extending so far as to allow 
him to unilaterally set up military tribunals absent 
congressional authority.
    So basically this is a calculated risk that the Supreme 
Court would uphold something it has not upheld before. I 
mention that because I look at Ex Parte Milligan, for example, 
which says that military tribunals for non-military personnel 
cannot be justified on the mandate of the President because he 
is controlled by law, and his sphere of duty is to execute, not 
to make the laws, and there is no unwritten criminal code with 
resort to be had as a source of jurisdiction, thus raising the 
very highly questionable--or saying it is highly questionable 
that he could do this absent congressional authority.
    Now, there is interest in the Congress in defining what a 
military tribunal could be, the President, what would be his 
authority. The administration officials have stated the planned 
scope of military tribunals was far narrower than had been 
suggested by the original Order. More recent assurances that it 
would be applied sparingly have been very helpful. So I wanted 
to see how the administration would use the Military Order.
    First, as written, the Military Order applies to non-
citizens of the United States. That would cover about 20 
million people here in the United States legally today. But the 
President's Counsel now says that military commissions would 
not be held in the United States but, rather, close to where 
our forces may be fighting. And then an anonymous 
administration official said there is no plan to use military 
commissions in this country but only for those caught in 
battlefield operations.
    Secondly, while the Military Order is essentially silent on 
the procedural safeguards that would be provided to military 
commission trials, the White House Counsel has now explained 
that military commissions would be conducted like courts 
martial.
    Third, nothing in the Military Order would prevent 
commission trials from being conducted in secret, which was 
done, for example, with the eight Nazi saboteurs after World 
War II, most often cited by the administration.
    But now Mr. Gonzales says that trials before military 
commissions would be as open as possible. Mr. Chertoff said 
something similar.
    Now, this is in sharp contrast to the statements before our 
hearings that quote from the administration, ``proceedings 
promise to be swift and largely secret,'' with one military 
officer saying that ``the release of information might be 
limited to the various facts like the defendant's name.''
    Finally, the Order expressly states that the accused in 
military commissions shall not be privileged to seek any remedy 
or maintain any proceeding, directly or indirectly, in any 
court. But now the administration says this is not an effort to 
suspend habeas corpus.
    So now, with the explanations that have come out 
subsequently, I understand first that the administration does 
not intend to use military commissions to try people arrested 
in the United States; secondly, the military commissions will 
follow the rules of procedural fairness used for trying U.S. 
military personnel; and, thirdly, the judgments of the military 
commissions will be subject to judicial review.
    Is that your understanding also?
    Attorney General Ashcroft. Well, you have given me a lot to 
think about with that question. You have spoken a number of 
things that I would like to comment on.
    Chairman Leahy. Sure.
    Attorney General Ashcroft. First of all, about the 
authority of the President of the United States to wage war 
under the Constitution and to address war crimes in the process 
of waging war, I believe that is clearly the power of the 
President and his power to undertake that unilaterally.
    The Supreme Court did address in the Quirin case 60 years 
ago the issue of war crimes commissions, and in that case, it 
cited the authority of the congressional declaration of war as 
language recognizing the President's power to create war crimes 
commissions. But I don't believe that the Court indicates 
that--or predicates its assumption and accordance of the 
President that power upon that particular authority.
    Nevertheless, the identical authority found in the article 
of declaration of war in the Second World War is now the 
authority which is listed in the Uniform Code of Military 
Justice at 10 U.S.C. Section 821. And it is my position that 
the President has an inherent authority and power to conduct 
war and to prosecute war crimes absent that indication in the 
Code of Military Justice. But for those who would disagree with 
that, the identical provision authority that was existent and 
was present in the Quirin situation is now present in the U.S. 
Code of Military Justice.
    Chairman Leahy. But, General, if I might just for a moment, 
the Quirin case did not address the question of whether the 
President could set up a military tribunal absent congressional 
authority. They did not address that question, and the previous 
Ex Parte Milligan apparently did.
    But my question still goes to this: Aside from--and 
understand there are members on both sides of the aisle who are 
willing to work with you to try to establish an authority, a 
congressional authority for military tribunals, but in a 
certain framework. But with all the changes and switchbacks and 
everything else and the statements that have come from 
different parts of the administration, my question is still 
basically: Does the administration--whether these are legal or 
not, is my understanding correct that the administration, one, 
does not intend to use military commissions to try people 
arrested in the United States; two, the military commissions 
would follow the rules of procedural fairness used for trying 
U.S. military personnel; and, three, the judgments of the 
military commissions will be subject to judicial review? Are 
those three points--is that understanding correct? Is that your 
understanding?
    Attorney General Ashcroft. I cannot say that I have that 
understanding in the way that you have it. I do not know that 
the United States would forfeit the right to try in a military 
commission an alien terrorist who was apprehended on his way 
into the United States from a submarine or from a ship, 
carrying explosives or otherwise seeking to commandeer an 
American asset to explode or otherwise commit acts of terror in 
the United States.
    Chairman Leahy. But not my question, General.
    Attorney General Ashcroft. Your question asked about people 
arrested in the United States. It would be possible for that 
person to be so arrested. I think--I don't want--let me just 
indicate this, two points.
    One, I want to mention that Ex Parte Milligan was limited 
in the Quirin case, limited to its facts, and the Quirin case 
upheld the use of commissions in the United States against 
enemy belligerents.
    And, number two, the President's Order, which I believe to 
be constitutional, assigned to the Department of Defense the 
development of a framework that would answer many of these 
questions, and it is premature to try and anticipate exactly 
what that framework would be, in my judgment.
    I stand ready, as provided in the President's Military 
Order establishing commissions to try war crimes, to assist the 
Department of Defense. And, frankly, I would stand ready to 
convey, if you wanted me to be the conduit, to convey 
suggestions from the Congress to the Department of Defense, 
although you all have complete access to the Department of 
Defense for the achievement of those purposes.
    Chairman Leahy. Just so members of the Committee will 
understand, originally--and I am advised that we are going to 
have three votes beginning at 11:00 on three Federal judges, 
one being a court of appeals judge, the other two being 
district judges. I have asked--I have sent word to the floor 
and asked if they might do by voice vote the two district 
judges because they were both ones that we voted unanimously to 
pass out of the Judiciary Committee. The Court of Appeals would 
be then done by roll call, and if that procedure is followed, 
which I understand they will, we would not have that first vote 
until 11:40.
    With that, I yield to Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman.
    General Ashcroft, some have questioned the continuing 
validity of Ex Parte Quirin, that case's authority for further 
Presidential orders establishing military commissions. On the 
other hand, that case was unanimously decided by the eight 
Justices who heard it.
    Further, the Supreme Court reaffirmed Quirin just 4 years 
later in In Re Yamashita, and in both cases, they followed the 
historical practice since our country's founding.
    Now, given the case law, the historical practice, and 
Section 821 of Title 10 of the United States Code, which 
continues to expressly recognize military commissions, passed 
by Congress, is it your view that the current United States 
Code is sufficient legal basis for the President's Military 
Order?
    Attorney General Ashcroft. It is my view that the United 
States Code of Military Justice as enacted by the Congress 
provides the same kind of support it provided or the articles 
provided relied upon in the Quirin case, so that if one were to 
come to the conclusion that the President is absent the power 
without congressional authorization, then one clearly has a 
Supreme Court opinion that indicates that such power is 
existent in statute.
    I do not have the view, however, that the President needed 
that in order to have such commissions, and I don't believe 
that the Quirin case indicates that either. So that we come to 
a place of perhaps a disagreement without a difference. In 
either event, the President has the authority to constitute 
military commissions for the trial of crimes of war, and I 
think that is very important. These commissions by the Order 
will be full and fair proceedings. The Department of Defense 
has been asked to construct a framework for conducting full and 
fair proceedings, and I believe--
    Senator Hatch. And the Order suggests that all other 
agencies of Government cooperate with the Department of 
Justice. So I presume your agency will cooperate with the 
Department--
    Attorney General Ashcroft. We would be pleased to render 
any assistance to the Department of Defense when they--
    Senator Hatch. Department of Defense, yes.
    Attorney General Ashcroft. --if they were to call upon us, 
and, frankly, it is expected that we would be standing ready 
for that responsibility.
    Senator Hatch. The Executive Office of United States 
Attorneys reports that for fiscal year 2001 the conviction rate 
of civilians tried on criminal charges in Article III courts 
around the country is 91 percent. In the Southern District of 
New York, the conviction rate is 97.2 percent. Given that the 
conviction rate of the military commissions used after World 
War II was approximately 85 percent, do you think there is any 
basis for prejudging military commissions as unfair to 
defendants, or somehow that they lack the constitutional 
safeguards or would lack the constitutional safeguards, 
although admittedly, not all of the additional rights that some 
of the extreme interpreters would wish to grant to criminals, 
even terrorist defendants?
    Attorney General Ashcroft. Well, it is pretty clear that 
military commissions for the litigation of war crimes, 
international commissions to litigate war crimes, are not 
uncommon. As a matter of fact, the United States Senate has 
indicated that it supports them where Bosnians were abused as a 
result of war crimes. We have supported the use of military or 
war crimes commissions to litigate those wrongs about war 
crimes committed by the perpetrators of those horrific acts. 
Now, whether we are talking about Rwanda in Central Africa or 
Bosnia in Central Europe, we are looking historically to 
Nuremberg and the trials there and the additional war crimes 
tribunals after there, these have been full and fair 
proceedings. They have been understood by the Congress of the 
United States to have been full and fair and have been 
supported by the Congress. As recently as two years ago, the 
Congress of the United States voted 90 to nothing--pardon me--
the Senate of the United States voted 90 to nothing that 
Milosevic should be tried in a war crimes commission. So this 
is not an unusual way to resolve war crimes committed in time 
of war.
    Senator Hatch. General, some recent press reports have 
suggested that the Department has forced the FBI to abandon its 
long-term investigations and its historic approach to 
investigating counter-terrorism. I would like you to comment on 
this and explain what change or changes if any the FBI has made 
to its mission.
    And on this issue, I would also like to read excerpts from 
a letter to the ``Washington Post'' from a former FBI agent 
that intends to set some of these recent misrepresentations 
straight. This letter says: ``In regard to the article entitled 
'Ex FBI Officials Criticize Tactics on Terrorism' by Jim McGee, 
printed in your newspaper November 28, 2001,'' he offers the 
following comments. And let me just read a few, and I will put 
the letter in the record.
    ``The article quotes me out of context.'' Now, I had better 
get the name here. The name is Oliver B. Revell, ``Buck'' 
Revell. ``The article quotes me out of context, and therefore 
conveys an inaccurate portrayal of my views on the current FBI 
and Justice Department efforts in the aftermath of the 
September 11th terrorist attacks. First, I believe that the FBI 
associated law enforcement agencies in the Justice Department 
are doing a very good job under difficult circumstances. Two, 
the terrorist attacks and subsequent anthrax incidents have 
presented our law enforcement agencies with the most difficult 
problem that they have had to face in their entire history.''
    And he goes on through the rest of this letter. So, again, 
could you comment on this and whether or not the FBI and the 
Justice Department are using the appropriate investigatorial 
techniques that have been long used, and/or whether you have to 
use those plus additional ones to be able to get the job done 
in protecting the American people?
    Well, can I ask unanimous consent that that letter go in 
the record?
    Chairman Leahy. Of course.
    Attorney General Ashcroft. Very frankly, we have set as a 
priority the prevention of additional terrorist attacks, and we 
do not ever want anything like September 11th again to visit 
the United States on our own soil with innocent victims. And we 
hope to improve our performance regularly by making whatever 
changes we can to upgrade our ability to detect and to prevent 
terrorism, to disrupt it and to make it difficult, in fact, 
impossible. So we will do what we can to learn from the past, 
and we will implement new strategies to protect America in the 
future. We did not have the kind of protection we needed on 
September 11th. So for us to continue and to act as if no 
changes would be appropriate may not be in our best interest.
    It is with that in mind that we will use whatever new 
techniques we can develop, and we will try and be open to 
suggestions from the American people, from the Congress, and to 
those who have served the Bureau in the past, and those who now 
serve the Bureau. Our objective is to secure American liberty 
and to protect American lives.
    Senator Hatch. Thank you, Mr. Attorney General.
    Chairman Leahy. Thank you. I have a number of other items 
also for the record, and without objection, they will be 
submitted for the record.
    Senator Kennedy.

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

    Senator Kennedy. Thank you very much. Thank you.
    General like Senator Leahy, I am profoundly concerned about 
the administration's broad plan on the military tribunals, and 
the plan raises extremely serious questions about fundamental 
civil liberties, questions that have not yet been 
satisfactorily answered by the administration's officials 
defending it. History has shown that the military courts have 
been effective, but they have also shown that they have been 
abused, and this time we want to try and get it right. And it 
is of profound importance to the country that we defend our 
ideals and our security.
    President Bush's Executive Order is a broad proposal that 
has enormous potential for abuse. There are few if any due 
process rights granted to defendants and trials may occur in 
complete secrecy. So constitutional experts have told us, 
however, that we can implement fair military trials that ensure 
fundamental civil liberties. We know it can be done. We know it 
should be done, but we have not heard that it will be done.
    So I am interested in what steps are being taken to give 
the meaning to the principle, which you have referenced here 
yourself this morning, of full and fair military tribunals and 
how the administration will work with the Congress to protect 
the constitutional ideals, and when will we hear about this? 
What can you tell us about the scope?
    Attorney General Ashcroft. Well, I am pleased to say that 
the President's Order requires that there be full and fair 
proceedings. Those are the kinds of descriptive terms that have 
governed the development of war crimes commissions and that 
govern the proceedings of war crimes commissions that operate 
today. The President has ordered--and it is a Military Order to 
the Department of Defense. It is out of his responsibility as 
Commander-in-Chief of a nation in conflict that he ordered that 
the Defense Department develop a framework that would provide 
full and fair proceedings. There are, obviously, some hints in 
the President's Order that indicate a level of fairness that I 
think is clearly understood. He has indicated that the hearings 
should be closed when it is in the national interest to close 
them, and I think the administration has made clear its desire 
not to close hearings when they are not in the national 
interest.
    It is to be noted that every judicial or adjudicatory 
process that I know of has some provision for closing hearings 
to protect the system and to protect the integrity of the 
operation. Our courts provide for sealed orders. They sometimes 
even have gag orders. They have, in certain areas, plans to 
protect the identity of witnesses. Similarly, the ongoing war 
crimes efforts in the Hague that relate to war crimes have 
those kinds of similar procedures. I believe that the 
Department of Defense, which has over 3,000 active full-time 
working lawyers, and which conducts a wide variety of military 
operations that relate to the adjudication of charges, has the 
capacity to develop a plan and framework that will work 
effectively, and I expect it to do so, will stand ready to 
assist them in doing so.
    Senator Kennedy. Can you give us some idea when that will 
be announced, and can you be any more precise in terms of the 
scope, or is that the way you want to leave it?
    Attorney General Ashcroft. Well, Senator, I cannot, and I 
just do not have specific information about the timeline. I 
would mention that the time of this setting is one where the 
President has sought to create a tool to protect American lives 
through his conduct of this war, and to create it in advance, 
and to make it known to the Congress and to the people of this 
country, well in advance of any demand for its services. In the 
Roosevelt Administration 60 years ago we did not have the 
luxury of that kind of commentary, and I am sure contributions 
made by the Congress and those in the culture would be welcomed 
by the Secretary of Defense.
    Senator Kennedy. I would have liked to have gotten into the 
questions on the administration's automatic stays of 
immigration judges' release orders and the attorney/client 
communications, but let me, in the time that I do have left, 
just get into one area. And that is in reference to the ``New 
York Times'' story this morning. Last month a manual entitled 
``How Can I Train Myself for Jihad''--it is a manual very 
similar to the one that you mentioned here--was found in a 
terrorist safe house in Kabul. It states in other countries, 
and in some states of the U.S., it is perfectly legal for 
members of the public to own certain types of firearms. If you 
live in such a country and obtain an assault weapon legally, 
prefer AK-47 or variations, you can learn how to use it 
properly and go and practice in the areas allowed for training. 
In September a Federal Court convicted a number of members of 
the terrorist group Hezbollah on 7 counts of weapon charges and 
conspiracy to ship weapons and ammunition to Lebanon. He had 
purchased many of the weapons at gun shows in Michigan. We have 
been trying to deal with this problem for many months. A 
potential terrorist can walk into a gun show, walk out with a 
gun, no questions asked.
    The report in today's ``New York Times'', that ``officials 
at the Department of Justice refused to let the FBI examine its 
background checklist to determine whether any of the 1,200 
people detailed following the September 11th attacks recently 
bought guns.''
    Why is the Department handcuffing the FBI in its effort to 
investigate gun purchases by suspected terrorists?
    Attorney General Ashcroft. Than you, Senator, for that 
inquiry. The answer is simple. The law which provided for the 
development of the NIC, the National Instant Check system 
indicates that the only permissible use for the National 
Instant Check system is to audit the maintenance of that 
system, and the Department of Justice is committed to following 
the law in that respect. And when the--
    Senator Kennedy. Do you think it ought to be changed?
    Attorney General Ashcroft. When the request first came, 
obviously, the instinct of the FBI was to use the information 
to see. When they were advised by those who monitor whether or 
not we are following the congressional direction, we stopped, 
and I believe we did the right thing in observing what the law 
of the United States compels us to observe because the list 
has--
    Senator Kennedy. Do you think it ought to be changed in 
that provision? The FBI obviously wants that in order to try 
and deal with the problems of terrorism. Do you support it?
    Attorney General Ashcroft. I will not comment on specific 
legislation in the hypothetical.
    Senator Kennedy. Would you submit legislation to do what 
the FBI wants to have done; would you work with the FBI and 
submit legislation to deal with this issue?
    Attorney General Ashcroft. I will be happy to consider any 
legislation that you would propose.
    Senator Kennedy. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Kennedy.
    And, Senator Grassley?
    Senator Grassley. Thank you, Mr. Chairman, and welcome to 
our former colleague.
    In the Quirin case the Supreme Court held that the Nazi 
spies were defined as unlawful belligerents. As such, the Court 
held that they were subject to the laws of war with trial by 
military tribunal. By the same token, would a member of al 
Qaeda be classified then as an unlawful belligerent?
    Attorney General Ashcroft. Quirin demonstrates the fact 
that there is what is called habeas corpus review, even of 
military commissions, and this is this question, but the Court 
clearly, using the language of the Roosevelt Administration, to 
bring the war crimes commission into effect there, said that it 
would exercise its habeas corpus jurisdiction to decide whether 
or not the commission was constitutional, and secondly, whether 
the belligerents were actually eligible for trial under the 
commission.
    We would anticipate that the same kind of review by the 
United States Supreme Court, which had been exercised with 
virtually identical language in the Order in Quirin would be 
exercised by the Supreme Court in the order that has been the 
Military Order for war crimes commissions by President Bush.
    Senator Grassley. Well, then al Qaeda members are, quote 
``unlawful belligerents'', unquote?
    Attorney General Ashcroft. Well, the order indicates that 
those to be tried under the order have to have committed war 
crimes, and I believe that is the test as to whether or not 
there is an adjudication of someone's case by the war crimes 
commission. And members of al Qaeda are unlawful belligerents 
under the law of war. The laws of war are different than the 
criminal laws of our culture. They exist outside the criminal 
codes, but there are offenses that are very clear. For 
instance, the targeting of innocent civilians as targets for 
destruction, I mean, that is very clear. The World Trade 
Center, not a military target, not part of the command and 
control of a military unit. The taking of hostages and killing 
of innocent hostages is a war crime that violates the law of 
war. That certainly was done when innocent individuals were 
taken hostage aboard airplanes and then brutally murdered when 
those were crashed. So the al Qaeda are unlawful belligerents 
under the law of war. They are not armed forces of any state. 
They do not bear arms openly as normal combatants do, but they 
are unlawful combatants because they secret themselves and 
because they conduct acts which are violations of the law of 
war.
    Senator Grassley. Would the procedural rules that the 
Secretary of Defense will be drafting, would it be your advice 
to him that they would be less or more than those rights 
afforded members of our owned armed forces in military 
tribunals?
    Attorney General Ashcroft. My view is that the President 
has ordered that there be full and fair proceedings, that they 
be open when possible basically, and closed when necessary to 
protect our interest. It is inconceivable to me that the 
President would intend that those who seek to destroy the 
American system of liberty and rights, would have greater 
rights than those who are seeking to defend those rights in our 
military.
    Senator Grassley. The purpose of my question is--am I not 
right on this or maybe my colleagues can correct me--but there 
has been some justification for the President's action besides 
the constitutional power of Commander-in-Chief that Congress 
has given the President, some authority under the Military Code 
of Justice in regard to this. So my question comes from that 
comparison, and that point of the President's power.
    Attorney General Ashcroft. Well, it is my view that the 
Congress has recognized the power inherent in the President, 
both in the Articles of War that supported the Roosevelt 
Administration's establishment of the commission in the 1940s, 
and the Bush Administration's establishment of the commission 
most recently. I might add that these Presidents are not alone. 
From George Washington to Abraham Lincoln, to George Bush and 
to Franklin Delano Roosevelt, Presidents have undertaken these 
responsibilities, and they have done so both with and without 
the specific language of the Uniform Code of Military Justice 
found in the law today.
    Senator Grassley. Could you provide us with more details on 
the constitutional statutory authority supporting the 
Department of Justice's decision to monitor attorney/client 
communications? The new regulations indicate that procedural 
safeguards will be implemented to prevent abuse of monitors of 
confidential information. Could you say in detail the specific 
safeguards as well as how the Department plans to implement the 
new regulation? And also, is the new regulation different from 
current and past Justice Department policies and practices 
regarding the monitoring of attorney/client communications?
    Attorney General Ashcroft. I am very pleased to address 
this topic of attorney/client communications. The Supreme Court 
has defined the rights that are involved in this setting in a 
case known as Weatherford v. Bursey, a 1977 case of the United 
States Supreme Court. In that case the monitoring was 
unannounced. In other words, it was genuinely eavesdropping. 
The word ``eavesdropping'' does not define what the United 
States Justice Department proposes doing in certain cases now. 
Eavesdropping would be unnoticed, no information given to the 
inmate or to the lawyer. The Department's first rule would be 
that you first give notice to the individual and to his lawyer. 
Secondly, this is done by individuals who are forbidden to have 
association with or communication with any prosecutors. 
Thirdly, no information can be used at all that flows from the 
understanding or the auditing of these conversations without 
first being approved by a Federal Judge, unless, fourthly, it 
is information which could help avert a terrorist attack.
    Now, let me go briefly for the reason for this. First of 
all, there are only 16 people out of the 158,000 people in the 
Federal Prison System to whom this order now applies. They are 
the only 16 people in special administrative procedures. And we 
are simply, for terrorists, who would seek to follow the al 
Qaeda manual and assist those brothers in their operation on 
the outside, and continuing to perpetrate acts through hidden 
messages and other signals they send through their attorneys, 
we simply are not going to allow that to happen.
    Now, I believe that the safeguards we have crafted fully 
satisfy well beyond the kind of conditions which were 
sanctioned or at least accepted by the Court in the Weatherford 
case, and it is not the intention of this Justice Department to 
either disrupt the effective communication between lawyers and 
the accused, but it is neither our willingness to allow 
individuals to continue terrorist activities or other acts 
which would harm the American public by using their lawyers and 
those conversations to continue or to extent acts of terrorism 
or violence against the American people.
    Senator Grassley. Mr. Chairman, I have a statement I want 
to put in the record, and then I have two questions I want to 
submit for answer in writing, and both of them refer to an 
incomplete letter I have received from you, plus an answer from 
the FBI that has not been responded to yet.
    [The prepared statement of Senator Grassley follows:]

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

    Thank you, Mr. Chairman. I'd also like to welcome the Attorney 
General and to thank him for his testimony today. This series of 
hearings is designed to explore the constitutional and legal 
authorities behind the recent Administration's policies involving 
military tribunals, alien detention, and the monitoring of attorney-
client communications. Congress has oversight responsibility of these 
policies, and the public has the right to know what these policies are 
and whether they comply with the law of the land. I think we'd all 
agree that there needs to be a proper balance between the real and 
pressing need for enhanced national security after the September 
11th attacks and the protection of our civil liberties.
    President Lincoln reminded us during the Civil War that the 
security of the nation is the basis upon which the exercise of all 
other rights depends. The Constitution, by design, appreciates and 
accommodates this principle. Article II vests in the President the 
broad responsibilities and powers of the Commander-in-Chief of the 
armed forces, and the chief law enforcer through the Office of the 
Attorney General. At the same time, the broad legislative powers of the 
Congress in Article I and the. judicial powers of review in Article III 
of the- Constitution .provide the kind of checks and balances that are 
the hallmark of our government.
    I realize that these are basic principles that everyone 
understands, but they are principles that we need to be reminded of, 
particularly when circumstances such as the current war against 
terrorism test the strength of our Constitution.
    Earlier this week, we heard testimony by the Justice Department, 
some prominent legal experts, as well as individuals who were affected 
directly by these new policies. As we reviewed the President's 
executive order and the Administration's policies, it's clear that the 
President has the legal authority to do what he's done so far. The 
Supreme Court has upheld the use of military tribunals as 
constitutional, and these tribunals have been used many times before in 
a fair manner. Furthermore, I think it is a fair point that we should 
not be providing more and special protections to non-citizens as 
compared to our own military people who are subject to military 
proceedings. The President's executive order on military tribunals is 
specifically limited as to whom it would apply. We should allow 
President Bush to have the option of military commissions as a tool in 
the fight against terrorism. And while I would have liked to have had 
more information on the Administration's policies as they were crafting 
them, President Bush did not need the express consent of Congress to 
take the actions that he did. We're at war, and our President needs to 
be able to act quickly.
    At this time we must be prepared to ask hard questions. In fact, I 
understand and appreciate the concerns expressed by my colleagues and 
others. These trying times don't justify violations of the Constitution 
or our laws. I still want to hear more about the Administration's 
policies regarding the treatment of detainees and the monitoring of 
attorney-client communications. But it appears that the actions by the 
Administration are based on strong legal authority.
    As I've said, it's the responsibility of the Congress and this 
Committee to ask questions about the appropriateness of these policies, 
and we need to take this responsibility seriously. So I'm glad that 
Attorney General Ashcroft is here today to give us more insights into 
the Administration's policies and to provide us with assurances that 
they are in compliance with the Constitution and our laws.
    As an aside, one of the key voices absent from these hearings is 
that of the thousands of law enforcement officials deployed across the 
country immediately after the attacks of September 11th, the 
agents in the field trying their level best to protect the American 
public. I think that these brave men and women are doing everything 
they can to prevent any other heinous terrorist attacks, and we need to 
recognize that they have a difficult job to do. I fully agree with a 
statement made during one of these hearings - we're dealing with a 
``completely different ball game.''
    We need to remind ourselves of the extremely complicated context in 
which our law enforcement officials are operating. What we have is a 
well-financed, organized and committed group that has explicitly 
declared war on the United States with the financial support of various 
business and non-profit organizations that have been able to penetrate 
and operate in this country. In addition, this group is waging that war 
not through conventional battlefield means, but through attacks on 
American institutions and people wherever they exist. The enemy is here 
among us now, the enemy is hiding on our soil waiting to strike. The 
goal of these terrorists is not just to destroy our way of life, their 
goal is to take our lives. Thus, it is not only appropriate but 
necessary that our law enforcement officers perform their job 
aggressively, albeit fairly and consistent with the Constitution.and 
the laws. of the nation.
    Mr. Chairman, thank you for holding this hearing.

    Chairman Leahy. Thank you, Senator Grassley, and the record 
will be open for statements of any senators who wish. And of 
course, the Attorney General has been around here long enough 
to know there may well be follow-up questions to be submitted 
to him, and I would--
    Attorney General Ashcroft. Indeed I do.
    Chairman Leahy. And I would expect your help and 
cooperation in getting those answered, as you always have.
    Attorney General Ashcroft. I will do my best.
    Chairman Leahy. Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Attorney General, 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 this 
is as it should be. With that trust, however, comes, as you 
know, responsibility. That responsibility is to make sure that 
the American people understand and trust the actions that the 
government is taking, especially when it comes to issues like 
civil liberties and the rule of law. It causes a great deal of 
consternation in our country when we hear about Americans 
abroad who are subject to foreign or military courts. We are 
outraged when we hear that the Americans on trial may not get 
an attorney, an impartial jury, or even a fair chance to defend 
themselves. So we should never open our country to that kind of 
criticism from abroad. I believe that no one should ever doubt 
that American justice holds the high moral ground, and I am 
sure that you agree.
    Mr. Attorney General, it is with that regard with respect 
to military tribunals, we, and I believe that you need to do a 
little more, and we would like to help you with that effort. No 
one believes that defendants should receive all of the 
protections afforded in normal proceedings. For example, I do 
not see a need for the defendant to get his Miranda warnings or 
a jury of his peers, but there are five basic principles that I 
believe should be respected, and I would be interested in your 
response.
    No. 1: At some point we need a clear understanding of who 
will be subject to these tribunals.
    No. 2: The defendants must receive the assistance of 
counsel in mounting a defense, and with that counsel, 
defendants must be permitted timely access to evidence and the 
right to cross-examine witnesses, and have the right to present 
exculpatory evidence.
    No. 3: If the standard of proof is to be less than ``beyond 
a reasonable doubt,'' then it must be at least as high as guilt 
by ``clear and convincing evidence.''
    No. 4: The death penalty must not be imposed simply by a 
vote of majority of the jurors. And
    No. 5: The system must guarantee the defendant a right to a 
meaningful appeal.
    Now, my question to you as the Attorney General of the 
United States speaking to the American people in advance of the 
rules that may come forth from the President as you have 
suggested, what would be your response to those five 
principles?
    Attorney General Ashcroft. Well, first of all, these are 
obviously laudable principles as they relate to the 
adjudication of criminal charges against an individual, and I 
am sure these are the kinds of considerations that these kinds 
of principles will be weighed in the deliberations of the 
Department of Defense. I think a full and fair proceeding is 
very likely to require many of these things you have mentioned 
in the war crimes tribunals which this Congress and this 
country has supported for the litigation of an adjudication of 
war crimes against others. You know, Bosnia and Romania and 
other settings, some of these kinds of principles exist there, 
and I think that it is very important for members of the 
Congress to state their considerations in this regard, and to 
make them known to those officials who will be developing the 
final rules that exist here. I do not know of anything in the 
Order of the President which would preclude the vast majority 
of the items which you have indicated. The kinds of guidelines 
which support the war crimes tribunals, for instance, in The 
Hague, are the kinds that exist in the President's Order to 
develop the procedures which are now before the Secretary of 
Defense.
    So I would urge you and members of the Committee to make 
these as contributions to the Secretary of Defense, and I 
believe that it is the intention of the Secretary of Defense to 
fashion a system which will support the world's respect for the 
way in which America always conducts justice.
    Senator Kohl. Thank you, Mr. Attorney General.
    Chairman Leahy. Senator Specter.
    Senator Specter. Thank you.
    Attorney General Ashcroft, the regulations which you 
promulgated for detention of aliens provides that even after 
the immigration judge orders release, that is stayed by an 
appeal; and even after the appellate tribunal orders release, 
that is stayed automatically if it is certified to you as 
Attorney General. But there are no standards set forth as to 
why the person would be detained further. There is a 
generalized requirement that these detention rules are 
articulated for national security, but even after releases by 
two courts, the detention remains automatic without any 
procedure, establishment or articulation of standards as to 
why. Should there not be some standard? And how do you make 
that determination for continued detention in the face of the 
two judicial orders?
    Attorney General Ashcroft. Well, in the cases which 
prompted us to embark upon this procedure, we came to the 
conclusion that it may be necessary for us, from time to time, 
to ask for the detention of an individual pending the final 
outcome and adjudication of the charges against that 
individual, and they have to do with national security.
    Senator Specter. But what is the standard for detention 
after two judges have ruled that he should be released
    Attorney General Ashcroft. Well, those judges are part of 
the process that is assigned to the Immigration and 
Naturalization Service function, which is a process which is 
overseen by the Attorney General, and if the Attorney General 
develops an understanding that it is against the national 
interest and would in some way potentially violate or 
jeopardize the national security, then those orders are 
overruled.
    Senator Specter. Attorney General Ashcroft, let me ask you 
to supplement your answer in writing. What you have just said 
is very generalized. I would like you to provide to the 
Committee what standards the Attorney General uses and how that 
ties in to the statute which requires release after 7 days. The 
statute, of course, would take precedence over a regulation, 
but I want to move on to another question now, and if you would 
supplement that in writing.
    Attorney General Ashcroft. I will be happy to do that. The 
statute reQuiring release after 7 days is, I believe the 
statute says they can be held without charges for 7 days. We 
are talking about individuals against whom charges remain.
    Senator Specter. Well, there appears to me, at least on the 
face, to be some inconsistency, but if you would address that 
in writing?
    Attorney General Ashcroft. Would be very happy to do so. 
Thank you for the opportunity.
    Senator Specter. Specifying why your decision is to keep 
him in detention after those two judicial orders, I would 
appreciate it.
    The Constitution provides, Article I, section 8, clause 14, 
empowering Congress to establish courts with exclusive 
jurisdiction over military offenses. There has been a statute 
which was referred to in the Executive Order, which delegates 
certain authority to the President providing that procedures 
may be prescribed by the President by regulations, which shall, 
so far as he considers practicable, apply the principles of law 
and rules of evidence generally recognized in the trial of 
criminal cases in the United States District Courts.
    Now, under that statute, there is a pretty plain 
presumption of using the regular rules of law and rules of 
evidence unless the President makes a determination that it is 
not practicable. When you commented that you were not going to 
notify the Congress when you have conversations with the 
President, I agree with you totally. I think that is a 
privileged communication, and that is the same kind of 
privilege which some of us are looking toward on an examination 
of monitoring attorney/client conversations. Any person of the 
United States has the same attorney/client privilege that the 
President does, and I appreciate your determination to respect 
that, but we are not really talking about notifying Congress on 
something you talked to the President about. We were talking 
about consulting with the Judiciary Committee. You used the sit 
next to me, right here.
    Attorney General Ashcroft. It was a pleasure. It is easier 
on that side.
    [Laughter.]
    Senator Specter. A pleasure both ways. But you get more 
than 5 minutes.
    [Laughter.]
    Attorney General Ashcroft. What makes you think that is a 
pleasure?
    [Laughter.]
    Senator Specter. But the question that I have for you, 
because my red light is on, is given Congress's congressional 
authority--and this is not your fault--when Assistant Attorney 
General Michael Chertoff testified, he told us that the 
Department of Justice was not even involved in this Executive 
Order, and that the regulations for the implementation go to 
the Department of Defense, which was a little surprising, since 
it is the Department of Justice which has the institutional 
knowledge and experience.
    I note that in the brochure you passed out, that the 
Executive Order is on paper with the masthead of the Department 
of Justice, but as I understand it, DOJ did not have anything 
to do with the Executive Order. What I would like you to 
address is your sense as to the appropriate relationship 
between the Judiciary Committee, the Senate, and the 
promulgation of the Executive Order and the rule that the 
Department of Justice ought to have in the rules to implement 
the generalizations of the Executive Order.
    Attorney General Ashcroft. That is a very, very interesting 
question. And first of all, I do not believe this is an 
Executive Order. I believe this is an order of the Commander-
in-Chief, and it is a Military Order. Inasmuch as it is, many 
times I think a number of us have slipped to call it an 
Executive Order, but the President operates in two ways to deal 
with crime. It is his responsibility in the criminal justice 
system to have as his administration the prosecution of crime. 
But in his conduct of his responsibility to pursue the war 
powers and to defend the United States in those settings, he 
has the right to call forth, through the Military Order, the 
development of a way to adjudicate war crimes which are 
separate and distinct from the criminal justice system.
    I believe that the President indicated in the Order which 
he issued, establishing war crimes commissions, that 
practicability--I believe is the word that is in the statute--
if it were to be applied to this particular commission order, 
does not exist, which would require adherence to those rules.
    Senator Specter. Thank you very much.
    Chairman Leahy. Thank you.
    General I am advised that what was to be the first of 
several confirmation votes on judges is to begin in about 3 
minutes, and my request to have anything after the first one be 
by voice vote will be granted. So what I am going to do is take 
a 10-minute break. Senator Hatch and I will go over, as will 
others, and be prepared to come back and begin immediately at 
the end of that time, and we will go to the Senator from 
California, Senator Feinstein at that time. You would probably 
like to stretch your legs anyway.
    Attorney General Ashcroft. Yes, sir, thank you.
    Chairman Leahy. We stand in recess.
    [Recess from 11:37 a.m. to 12:05 p.m.]
    Chairman Leahy. Our former colleague, the Attorney General, 
knows that just like 5-minute questions that often are not, 15-
minute roll calls often are not, but I appreciate the senators 
who went over to vote and came back. I have also been told we 
will not have another roll call for a while. We just are about 
to finish the vote on confirming a Circuit Court of Appeals 
Judge, and we will then voice vote other District Judges.
    But Senator Feinstein was next in line, and, Senator, I 
appreciate you being here and I will yield to you.

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

    Senator Feinstein. Thank you very much, Mr. Chairman.
    Mr. Attorney General, I would like you to know personally 
that I am very supportive of what your Department is doing and 
what you are trying to do. Perhaps as a member of the 
Intelligence Committee we learn things about what is happening 
that we cannot really disclose, but I am convinced that there 
is reason for deep concern, and there are good reasons for 
doing what the President has proposed.
    It was interesting for me to read through the al Qaeda 
manual, the translation of which you just distributed to us. 
And so that everybody might know, I just want to read one small 
part. It is under ``Principles of Military Organization.'' And 
it says ``Missions Required of the Military Organization.'' 
``The main mission for which the military organization is 
responsible is the overthrow of the godless regimes and their 
replacement with the Islamic regime. Other missions consist of 
the following: gathering information about the enemy, the land, 
the installations and the neighbors; kidnapping enemy 
personnel, documents, secrets and arms; assassinating enemy 
personnel as well as foreign tourists; freeing the brothers who 
are captured by the enemy; spreading rumors and writing 
statements that instigate people against the enemy; blasting 
and destroying the places of amusement, immorality and sin, not 
a vital target; blasting and destroying the embassies and 
attacking vital economic centers; blasting and destroying 
bridges leading into and out of the cities.''
    That is a pretty clear statement of military mission. 
Having said that, and just following up on Senator Kennedy's 
questioning, I am also aware that many people who may well be 
associated with terrorist organizations, how they buy their 
weapons, and the manual also speaks to that, how to buy these 
weapons. And you very nicely offered to look at any proposal. I 
would like this afternoon to send you a proposal, which 
Senators Corzine, Inouye, and Reed and I will shortly 
introduce, which is for a universal background check for the 
purchase of weapons, and which is modeled after the 
Pennsylvania law which I believe was signed by Governor Ridge. 
I would like to ask that you take a good look at that proposal 
and tell me what you think about it.
    Also, having participated in the other hearings, I want to 
express one thought to you. The resolution the Congress passed 
authorizing the President to use force, was quantified, and it 
was quantified because a country, as in a full declaration of 
war, is not what we are fighting against, so no country was 
named. But the President was authorized to use all military 
force against the perpetrators of 9-11 and where that would 
take him in terms of using that military force.
    Now, it may or may not have the same legal standing as a 
full declaration of war, but I think there is room for some 
problems here. So I am of the opinion that we should pass an 
authorizing resolution that really gives you, as the Executive 
Branch, the authority to do what you need, and also state some 
things like the standard of proof, like whether it is open or 
partially closed, the right to counsel, those kinds of things 
in that declaration.
    And I have a series of questions, and I will not have time 
to ask them all, about where you stand with respect to precise 
points that would be in that declaration, but I would like to 
ask one question because I think it is the heart of a lot of 
the concern, at least on this side of the aisle. The White 
House counsel, Alberto Gonzales, wrote an Op-Ed for the ``New 
York Times'' recently, in which he explained some of the legal 
provisions in the President's November 13th Order. And I would 
like to state this. Mr. Gonzales, and I quote: ``The Order 
covers not only foreign enemy war criminals, it does not cover 
United States citizens or even enemy soldiers abiding by the 
laws of war.''
    Now, two days ago Ambassador Prosper testified that he 
interpreted this sentence to mean that only those who commit--
and I quote--``grave violations that require organization, 
leadership, promotion of purpose'' will be tried by a military 
commission. However, the order is sufficiently broad to leave 
open the concern that this order could cover many people who 
have a very peripheral relationship to the September 11th 
attack.
    Does the Order--and this is getting at the intent--does the 
Order only apply to the leaders of al Qaeda and those directly 
involved in the September 11th attacks and other international 
terrorist attacks, or will it also apply to those only 
peripherally involved in criminal activity?
    Attorney General Ashcroft. I think it is, first of all, 
important to note that it does not apply to American citizens, 
nor does it apply to people who violate the criminal law of 
this country generally.
    Senator Feinstein. What about legal aliens?
    Attorney General Ashcroft. Legal aliens are obviously 
subject to this Order. But the point is that the commissions 
were called into existence by issuing a Military Order by the 
President that would try war crimes. So individuals who have 
committed war crimes in the context of this time of conflict 
are subject to this order unless they are United States 
citizens, and technically, in that respect, the universe of 
individuals eligible for coverage is a large number. But 
similarly, every criminal law that we pass in the United States 
has a potential coverage of 280 million people. That is the 
population of individuals. And we see those laws as protecting 
the 280 million people, not putting them in jeopardy. 
Similarly, I believe the President's purpose in this war crimes 
commission, which he has issued, and obviously it calls for the 
right to counsel and things in the commission order, it is to 
protect people, not to place them in jeopardy. And, obviously, 
the 20 million people in the United States that it would 
protect, even though the fact they would be eligible for 
prosecution here, are people who also fear the kind of 
terrorism that destroyed a number of individuals, not citizens 
of the United States, in the World Trade Center bombing and in 
the other incidents that related to September 11th.
    It is important that the President's directive that we have 
a full and fair hearing be reflected in what the Department of 
Defense eventually details as the procedures, and I would--I 
think it would be appropriate for discussion and contribution 
to be substantial in that regard to the Department.
    Senator Feinstein. I know my time has expired. Let me just 
clear this up. You are saying then that the military tribunal 
will only be used for those who would be prosecuted for war 
crimes?
    Attorney General Ashcroft. War crimes.
    Senator Feinstein. Thank you.
    Attorney General Ashcroft. And the order limits the 
jurisdiction of the commission to the commission of war crimes.
    Senator Feinstein. Thank you.
    Chairman Leahy. It also says those who harbor or assist or 
anything else; is that correct?
    Attorney General Ashcroft. When it talks about the trials 
to be conducted, it talks about trials to be conducted for war 
crimes.
    Chairman Leahy. General--and I do not expect that you have 
had time to see this yet--but I faxed down to your office 
yesterday some proposed legislation, and I am not asking 
questions on that because it would not be fair, you have just 
gotten it. But I wish you and your experts would look at some 
proposed legislation. I know Senator Feinstein has raised this 
issue with me, I think several days ago actually, as Schumer 
and others have, as members in both parties of the Armed 
Services Committee have raised the issue. I have to tell you, I 
think, from a constitutional and historical point, the 
President, you, the Secretary of Defense and others, will be 
strengthened in your resolve, but also in your abilities, by 
having a congressional mandate and framework for these military 
tribunals. Nobody up here has questioned the fact that you can 
have military tribunals, but as an Op-Ed piece in the Post and 
others said today, very, very special circumstances when they 
are done, but if you have congressional framework, 
congressional approval, a lot of the questions that are being 
asked would stop. And I really think, as the Senator from 
California and others have suggested, you should do that. 
Please take a look at some of the ideas I have sent and others 
will send you, because ultimately we work better when we work 
together. We do not give the best image to the rest of the 
world when we work apart.
    Senator Feinstein. Mr. Chairman, would you just allow me, 
because the order is a little different from what the Attorney 
General said. The order states: ``To be tried for violations of 
the laws of war and other applicable laws by military 
tribunals.''
    So you are saying strike ``the other applicable laws.''
    Attorney General Ashcroft. I believe that the correct 
construction of the order would indicate that only individuals 
who had committed war crimes would be subject to the 
jurisdiction of the commission.
    Senator Feinstein. Thank you.
    Chairman Leahy. Again, I think that is why we should have 
it laid out very specifically in the law, not by Executive 
Order, but in the law, what is and what is not allowed.
    Attorney General Ashcroft. I guess I would refer you to 
Section 4, part (a). ``Any individual subject to this order 
shall, when tried, be tried by military commission for any and 
all offenses triable by military commission that such 
individual is alleged to have committed, and may be punished in 
accordance with the penalties provided under applicable law 
including life imprisonment and/or death.''
    I do not think that is instructive. I have been handed 
something that is in response to some other question.
    [Laughter.]
    Chairman Leahy. General, this is not a game of ``gotcha.''
    Attorney General Ashcroft. I am informed that it is 
instructive, and this is war crime language.
    Chairman Leahy. I thought you were going to say you were 
informed it is a game of ``gotcha.''
    Attorney General Ashcroft. I will be glad to confer with 
you on this. Thank you.
    Chairman Leahy. The point is, we are laying down not only a 
legal history, we are laying down a historical history here. So 
I would ask, in reviewing the transcript, certainly if there is 
additions, changes you want to make, do so, and I say that the 
same for members of the panel.
    The Senator from Arizona has been very patient.
    Senator Hatch. Mr. Chairman, if I could just make one 
comment about that.
    Chairman Leahy. Not as patient as the Senator from Utah. 
Yes, go ahead.
    Senator Hatch. We have all seen how cooperative the 
Congress is on something as mundane, as simple as a economic 
stimulus package. You can imagine what they would do with this 
if we--you know, I was just amazed, honest to goodness, I was 
amazed to see some of the comments of Julian Bond against our 
Attorney General. Some of the things he says are really quite 
offensive.
    Chairman Leahy. We are talking about this--
    Senator Hatch. Wait just a second. And I am just saying 
that there are differences on these matters, but one difference 
that I do not think anybody can dispute, is that we have had 
presidential military commissions from the time of George 
Washington, and Congress has generally always gone along with 
them because of the need to cooperate and resolve these 
problems of war. So I just make that point for whatever it is 
worth.
    I would like to put in the record some remarks that I would 
make, and also a report by Cecil Angel, the ``Free Press'' 
staff writer, about some of the comments made against our--I 
think inappropriate comments and very, very inflammatory 
comments made against our Attorney General. I think terrible 
comments from somebody who I believe should be in a position of 
respect.
    Chairman Leahy. We have a number of things that will be put 
in the record. Of course, every Senator will be allowed to put 
whatever they want in the record.
    But, General, please take a look at the legislation we have 
sent down to--this Committee does not deal with economic 
stimulus packages; it deals with the criminal codes and others 
of this country, and we move pretty rapidly working together on 
the antiterrorism legislation, and we demonstrated we can do 
that when the country's future is at stake.
    Attorney General Ashcroft. Under the category ``the staff 
is always right'' let me just say that this does say, ``all 
offenses triable by military commission'' and that is artful 
language designed to mean war crimes.
    Chairman Leahy. I understand.
    Attorney General Ashcroft. But I will be happy to go 
further with that and clarify that in another setting.
    Chairman Leahy. But do take a look at the legislation. I 
would like to have your views on it, the legislation we have 
sent you.
    Attorney General Ashcroft. Thank you.
    Chairman Leahy. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. I would just note 
that Senator DeWine was here before I was. Are we just going in 
the regular order or--
    Chairman Leahy. Oh, I am sorry.

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

    Senator Kyl. I would be happy to defer to Senator DeWine.
    Senator DeWine. Go ahead. It does not matter.
    Senator Kyl. All right, thank you.
    Chairman Leahy. I am sorry. That was my mistake.
    Senator Kyl. All right. I thank the Senator from Ohio.
    I just have three questions. Let me just make a quick 
comment in view of the colloquy that has occurred here before. 
The Attorney General today and Michael Chertoff last week, made 
it clear that the President's order is pursuant to his 
authority as Commander-in-Chief directed to the Department of 
Defense for both the execution of the military commissions, as 
well as the development of the rules and procedures for their 
conduct, that he is perfectly willing to pass on any 
suggestions that we have. This is not a Judiciary Committee 
responsibility or a congressional responsibility, and I would 
hate to think that we would take time out from holding hearings 
on the 100 plus judges that are pending before us, for example, 
to try to come up with the rules and procedures for conducting 
these military commissions. It is a Defense Department 
responsibility, a presidential responsibility, and while I am 
sure they will have the able advice of the Department of 
Justice, should they request it, as the Attorney General has 
volunteered, it is not something that either we, as a 
Committee, nor the Congress generally, should start getting 
into at this point in the session, and with all of the other 
business that is pending before this Committee. That is my 
opinion of that.
    Just three questions, Mr. Attorney General. First of all, 
Senator Feinstein's comment got me thinking about this. Our 
special forces round up a couple hundred of these radical Arabs 
who we have been reading about, who even shoot the Taliban 
soldiers in the back when they think they are trying to flee, 
they are so tied in with the al Qaeda. So they fall into our 
hands, and it seems to me we have got three choices. I suppose 
what we could say is, ``Here,'' to the Northern Alliance, ``You 
take them.'' And I would hate to think about their civil rights 
in that situation, but that would be the easiest thing because 
military commissions are a lot of trouble, but we could also 
try them before the military commissions. It seems to me the 
third option is clearly not an option, and that is bringing 
them to the United States for Article III trials.
    So my first question is: what your take is really on the 
need for the commissions. We have talked a lot about the 
potential rules and procedures, but why do we need them in the 
first place?
    Secondly, the point has been raised about the law to be 
applied to U.S. citizens. There already is a United States 
citizen, a fellow by the name of John Walker, who tied up with 
these Taliban fighters and was recently captured, and there 
have been questions about what will be done with him, and I 
wonder if you could tell us what the Department of Justice, if 
anything, what the Department of Justice intends to do about 
the case of John Walker.
    And third, if you would, again because the Defense 
Department is the department of government responsible for the 
development of the procedures for the conduct of the military 
commissions, you alluded to something in your statement I think 
could well justify a lot more comment, especially relating to 
the oversight authority of this Committee, and that is, you 
have said that the Justice Department is in some respects being 
restructured to fight this war on terrorism. We have a new 
obligation and a new mandate here, and to the extent you would 
like to edify us about what you are intending to do to make us 
safer, I would appreciate hearing more on that as well.
    Attorney General Ashcroft. Thank you very much, Senator. 
Let me first say why commissions. I believe the President has a 
duty in time of war to see to it that those individuals that 
are involved in whatever war there is against the United States 
do not target innocent civilians. And if we do not impose a 
penalty to those who violate the laws of war, we will provide 
an incentive for the violation of the law of war. The war 
crimes commission, ordered by the President, now being 
developed by the Department of Defense, is designed to say that 
attacks on innocent civilians that are not military targets, 
taking hostages and killing them, are acts of war.
    Now, when we come to those responsible for this, say who 
are in Afghanistan, are we supposed to read them their Miranda 
rights, higher a flamboyant defense lawyer, bring him back to 
the United States to create a new cable network of Osama TV or 
what-have-you, provide a worldwide platform from which 
propaganda can be developed? We have judges in the United 
States now that are constantly protected because of their prior 
involvement in terrorist trials. Can you imagine making a 
courthouse in a city a target for terrorist activity as a 
result of focusing the world's attention on some trial in the 
normal setting for these war crimes?
    War crimes are well understood in the international 
community. We have ongoing war crimes tribunals that relate to 
atrocities conducted against the Rwandans, that relate to 
atrocities conducted against the Bosnians. There have been a 
few atrocities conducted against the United States of America, 
and I think it's appropriate that we exercise the discipline of 
a war crimes commission to hold those responsible who violated 
the law of war in that respect.
    Now, you raise the case of an individual said to have been 
a U.S. citizen who joined the other side. I really am not in a 
position to respond regarding any specific prosecution or case 
or alleged crime committed by an American. I would say very 
clearly that history has not looked kindly upon those that have 
forsaken their countries to go and fight against their 
countries, especially with organizations that have totally 
disrespected the rights of individuals, that make women objects 
of scorn and derision, that outlaw education. That is certainly 
the case. And I will not belabor you right now with a list of 
the kinds of criminal actions that could be taken in the 
criminal justice system against such individuals. I can tell 
you that no person will be--no citizen of the United States 
will be tried in a war crimes tribunal. The commission order of 
the President indicates that that is limited to noncitizens.
    Senator Kyl. General Ashcroft, did you want to comment at 
all about the restructuring of the Department of Justice for 
the purpose of protecting?
    Attorney General Ashcroft. Well, thank you. I believe that 
there is a noble purpose in justice, and that is to prevent 
crime. Whenever we prosecute, we are trying to remedy the 
absence of justice that came when someone's rights were 
infringed. And I have always said that we are the Justice 
Department, not just the prosecution department. So we have 
begun even a more pervasive shift toward prevention, finding 
ways to disrupt and prevent this activity, rather than to try 
and remediate it, because we know that the scare that is left 
by thousands of people who die in even a single terrorist 
incident is a scar that cannot be remediated, and all the 
prosecutions in the world are not as good as preventing that. 
So if we have a sea change in terms of our effort, it is to try 
and reconfigure our thinking toward prevention, not just 
prosecution.
    We are going to be sending people from Washington to the 
front lines in our offices to prevent and to prosecute and to 
disrupt terrorism, rather than have so many people in 
Washington, D.C. But we are going to be learning about how we 
can additionally deploy our resources so as to make sure this 
does not happen again. This is something that is intolerable 
and unacceptable, and we have got to fight to make sure it is 
not repeatable.
    Senator Kyl. I appreciate that. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Thank you, Mr. Attorney General, for the opportunity for 
all of us to ask you questions today. I would like to just 
start with a general question. There is often an attempt at 
hearings like this to set a room tone at the beginning, to put 
everything in context, and one thing that my good friend, the 
Senator from Utah, the ranking member, said, I believe quoting 
another Senator, that we ought to get off the back of the 
Attorney General. And in your own statement, you referred to 
people who scare Americans with ``phantoms of lost liberty'' as 
aiding the terrorists by eroding national unity.
    I would just like your assurance that you do not consider 
the hearings that we have been holding, under the leadership of 
the chairman, and the hearing today as in any way being too 
much on your back or in any way aiding the terrorists by 
eroding national unity.
    Attorney General Ashcroft. I am very pleased to repeat what 
I said in my statement, that I was pleased to be here, that I 
am honored to be here, that we do need reasoned discourse.
    I did indicate that we need reasoned discourse as opposed 
to fear-mongering, and I think that is fair. This is the place 
where reasoning and discourse take place. And we do need to be 
fair enough about this to allow the details to be known.
    When news organizations across America--from all sides of 
the spectrum, I might add--trumpet as a headline, ``Attorney 
General eavesdrops conversations between lawyers and clients,'' 
and they leave it there, that is a gross misrepresentation 
about civil rights.
    Senator Feingold. Let me get into the specifics, and I 
appreciate that, and I take your response as certainly 
suggesting that this process is entirely appropriate.
    Attorney General Ashcroft. Absolutely.
    Senator Feingold. So let me proceed with that.
    Attorney General Ashcroft. And it includes other hearings 
held to which we have sent members of the Department.
    Senator Feingold. Fair enough. Let me turn, then, to the 
topic of one of those hearings, the issue of the secret 
detention of hundreds of individuals, most--
    Attorney General Ashcroft. May I just indicate that--and I 
guess I should not interrupt, but ``secret detention'' is 
something I would like--
    Senator Feingold. Let me strike the word ``secret'' so my 
time doesn't get used up in the description.
    Attorney General Ashcroft. Yes, let's do that.
    Senator Feingold. The detention of hundreds of individuals, 
mostly of Arab or Muslim backgrounds, and many, if not most, 
for minor immigration violations. So far, Mr. Attorney General, 
you have refused to provide a full accounting of these 
individuals. At first you said that the law prevented you from 
disclosing the identities of the roughly 550 individuals held 
on immigration charges. When I asked Mr. Chertoff last week to 
cite the law that prevents the Department from releasing the 
information, he confirmed that there is no such law.
    You also stated that you did not want to help Osama bin 
Laden by releasing a list of the detainees. Yet you and Mr. 
Chertoff have said nothing prevents the detainees from self-
identifying.
    Now, this, it strikes me, just entirely undercuts the 
argument that giving out this information will help bin Laden, 
because if you really thought it would, you wouldn't permit 
self-identification. You wouldn't have released the names of 93 
individuals who have been charged with Federal crimes.
    Moreover, as the hearing the Committee held on Tuesday 
showed, saying detainees can self-identify is sometimes 
questionable at best. Mr. Al-Maqtari, a former detainee who 
testified, was allowed one phone call of no longer than 15 
minutes a week for almost the entire 2 months he was held in 
detention.
    So I would like to specifically ask you about the right of 
the people being detained to consult with an attorney. Mr. 
Chertoff testified before this Committee last week that every 
one of these individuals has a right to counsel, every person 
detained has a right to make phone calls to family and 
attorneys. But the right to an attorney is meaningless if in 
practice it is impossible for an individual in custody to 
contact his attorney.
    And we heard testimony in the Committee Tuesday of at least 
two instances where individuals were unable to speak with their 
lawyers for days or even weeks after they were detained. We 
know that these are not the only such instances.
    Furthermore, it became clear that the roadblocks to 
individuals' consulting with counsel not only cause great 
hardship to the clients and violate their rights, but it also 
hinders the investigation and wastes the resources of law 
enforcement on people who, it turns out, have no connection to 
terrorism. So I would like you to answer two questions in this 
regard.
    Will you commit to this Committee today that the Department 
of Justice will take immediate steps to assure that every 
detainee is made aware of his right to be represented by 
counsel and made aware of organizations or groups that will 
represent him without charge if he can't afford a lawyer, that 
counsel are able to locate and consult with their clients 
without difficulty, and that detainees are permitted to contact 
their attorneys as often as they need to and receive or return 
all calls from their attorneys without interference?
    And, second, until the full disclosure requested in my 
October 31st letter is made, I would request that the 
Department of Justice determine if any of the people currently 
held in detention are not now represented by counsel. Will you 
do that?
    Attorney General Ashcroft. I think I can promise to do 
virtually everything you have said. You have made a pretty 
particular and detailed proposal. You have said that they will 
be able to return every phone call. And there are reasonable 
limits that I think have to be imposed, even on those 
individuals who have violated the law and want to confer with 
their attorneys.
    I believe it is the right and will take steps to make sure, 
again, that every detainee understands that we believe it to be 
his or her right that they have counsel. For those for whom 
government counsel is not provided, in other words, that there 
is not a government-funded counsel, we have a practice of 
providing a list of pro bono counsel, and we have been bringing 
people of those pro bono counsel into the detention facilities 
regularly so that individuals who are being detained can have 
an opportunity to see an attorney. If they haven't called them 
or haven't chosen to, they still have a chance to confer.
    I want to do that, and I do not intend to hold individuals 
without access to counsel, and we will take steps to make sure 
that we don't. I don't believe that we are. And I will make 
available to individuals an understanding of pro bono counsel 
or free counsel in the event that they are not classified as 
individuals entitled to an attorney at Government expense.
    Let me clarify a couple things, if I might, and I will try 
not to take too much time.
    When Mr. Chertoff was answering the question, he said, ``I 
don't know that there is a specific law that bars the 
disclosure of the names.'' That was his testimony. And let me 
just tell you what the frame of reference is when I talk about 
the law regarding detainees.
    The law varies in relation to the nature of the detainee. 
If a detainee is a permanent resident but an alien to the 
United States, the law prohibits the disclosure of his name or 
her name. If the person is not a permanent resident but is here 
on another kind of visa or authority, the law recognizes the 
duty of the Attorney General or the authorities to protect 
prosecutions and investigations by not providing lists of the 
names.
    These laws are basically summed up in the FOIA legislation, 
which talks about freedom of information, and one of the 
considerations I have is that the privacy rights of individuals 
in this setting should be respected, that people should not be 
labeled as terrorists while we are still investigating any 
connections they might have to terrorism.
    With that in mind, in addition to protecting from 
disclosing information about who we have in custody or don't 
have in custody as a coordinated list, I have refrained from 
developing a list and, frankly, don't intend to develop such a 
list.
    You mentioned that each of these individuals has had the 
right to self-disclose their incarceration. Each of these 
individuals obviously has had the right to contact a lawyer. 
You cited some who have said that their contact hasn't been 
with free enough access, and I will look carefully into that. I 
know that one of the individuals that I believe you had at your 
hearing was an individual that I, immediately when I heard that 
there may have been an irregularity regarding his detention, 
sent FBI members to his home the minute he--when I heard about 
that, upon his release, and our report was that he didn't 
allege a problem at that time. But I am eager, was then, remain 
eager to observe these rights.
    It is with that in mind that I would say that we have 
detained about 563--we have in detention about 563 individuals 
who are being detained on Immigration and Naturalization 
Service items related to the events of 9/11. We have a total of 
about 20,000 people detained in the Immigration and 
Naturalization detention program. We have about 54 people 
detained on criminal charges, and those individuals obviously, 
unless the court has sealed the nature of the charge, there is 
a public record of their detention, although it is not a 
coordinated list.
    We have detained some other individuals, and I am not at 
liberty to discuss their detentions because they are the 
subject of material witness warrants.
    Senator Feingold. Sorry, Mr. Chairman. I know my time is 
up, but let me just say quickly in response that there still 
has been no law cited for us that suggests that the law 
prohibits the disclosure. We have no citation to that effect, 
and we are still wondering what that is.
    Mr. Chairman, I appreciate the Attorney General describing 
the practice with regard to right to counsel, but I want your 
commitment, Mr. Attorney General, that everyone in detention 
will get a lawyer and will be able to consult with them. Can 
you give me that commitment?
    Attorney General Ashcroft. No, I can't. I cannot force 
lawyers on individuals who refuse lawyers. I can make a lawyer 
available to every person in detention in terms of the 
availability to lawyers for calling them. I am not authorized 
to provide lawyers to those in the INS detention at public 
expense, but I will promise to do everything--
    Senator Feingold. But you commit to making a lawyer 
available to every person in detention?
    Attorney General Ashcroft. If the lawyers are willing to 
provide service to those individuals and we are helping 
generate those lawyers, we will do that.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Attorney General Ashcroft. If I might?
    Chairman Leahy. Yes, go ahead, General.
    Attorney General Ashcroft. I would cite Privacy Act 5 U.S. 
Code 552A at (a)(2) and the FOIA 5 U.S. Code 552(b)(6), 
especially as to the prohibition regarding naming legal 
permanent residents.
    Senator Feingold. You are citing this as a prohibition on 
disclosing any of the names of those in detention?
    Attorney General Ashcroft. Not any of the names of those in 
detention. As I indicated earlier, Senator, there is a varying 
legal standard depending on the status of the individual. The 
prevention is on a narrow group of individuals that are 
permanent residents. The authority not to disclose relates to 
those who are not permanent residents, but disclosure of which 
in the judgment of law enforcement authorities would be ill-
advised as it relates to aiding the enemy or interfering with a 
prosecution.
    Senator Feingold. Mr. Chairman, I would simply add that 
this confirms that there simply is no blanket prohibition in 
the law of disclosure, and I would just like that on the 
record.
    Attorney General Ashcroft. I can agree with the Senator and 
would stipulate to the fact that there is no blanket 
prohibition.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you both.
    Senator DeWine?

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Mr. Chairman, thank you.
    Mr. Attorney General, thank you for your testimony, and 
thank you for the good job that you are doing for our country.
    We had the opportunity in this country for the last several 
weeks to have a spirited debate about military tribunals. I 
think after that debate it is clear, after your testimony it is 
clear that military tribunals are constitutional, that there is 
certainly historic precedent for doing it.
    I think also it is clear that in certain limited cases, you 
do have the need in this country to protect the trier of fact, 
judge or jury, witnesses in some cases, and I think it is also 
clear that in some cases we have the need to protect 
intelligence sources and intelligence information.
    I would, though, like to talk for a moment with you about--
and I understand that it is not your Department that is putting 
out the protocols and writing the rules, but I again assume 
that you will have some input into that.
    I would like to talk a little bit about some of the public 
policy issues and public policy concerns that I have and 
foreign policy concerns I have about the use of military 
tribunals.
    We have every day in this world hundreds of thousands, 
maybe millions of U.S. citizens who travel or who live in other 
countries. I think we have to be concerned about the perception 
of what we are doing, not just the reality of what we are 
doing. I certainly have confidence in this administration in 
doing it correctly, but I think also the perception is very, 
very important.
    So I would certainly hope that when the administration 
comes out with the protocols, in addition to what has already 
been stated, that there would be some other things that would 
be very clear: one would be very clear guidelines as to the 
rules of evidence; second, that the rules would provide very 
clear standards of proof and burden of proof, ultimate burden 
of proof that would have to be met before someone could be 
convicted; third, I would hope that there would be a provision 
for a review, a final review of the verdict beyond the initial 
court or the initial trier of fact; and, fourth--and certainly 
not least--is that I would hope that these would be held in 
public, in the open, they would be as open as possible unless 
there is a compelling reason for their closure.
    Tribunals throughout history certainly of the last century 
and into the current century have provided an opportunity for 
mankind and for civilization to advance. We all cite and think 
about, I guess, the Nuremberg trials, controversial with some 
people at the time, but I think as we look back, those 
hearings, those trials, we look back as an advancement in 
civilization, that we do, in fact, hold people accountable for 
what they do, but we do it in the right way and we do it, when 
possible, in a public way.
    So I think these are tools for us to advance, tools for us 
to learn, and tools for us to teach. One of the great things 
this country teaches and one of the great things that we 
export--when we talk about what we export, I think the greatest 
thing we export is the rule of law. And we see it in--and you 
have traveled to foreign countries, I have traveled, and we do 
a great job in trying to convince people that if they really 
want to advance, if they want to protect rights, if they want 
to have advancement in civilization, they will, in fact, have 
the rule of law.
    And so I think we just need to be very, very careful as we 
approach this. I think it has been demonstrated, the need to 
have these, but I think it has also--in each particular case, I 
will take the President at his word, he will make the decision, 
and in each case there will be, I would hope, a very compelling 
reason--a compelling reason to have a military tribunal and a 
compelling reason to go beyond that if they have to be closed, 
a compelling reason to close those particular hearings.
    Let me just ask you a question, and I will let you comment 
if you could. I am learning after a few years in the Senate how 
to do this. You get all your comments in, and then you give the 
witness the opportunity to comment right as the red light comes 
on.
    It is clear, based on, I think, what we have read and based 
upon good common sense and some of the things that you have 
said today, that there has to be have been a fundamental shift 
in how the Department operates and what it sees as its mission. 
And I don't want to put words in your mouth, but we would all, 
I think, assume that there has been some change in the mission 
and the change has to do with the protecting of the United 
States citizens against future terrorist activities.
    With that change, as you look at the future of the 
Department, doesn't that mean that there will be some things 
that you simply will not do as well or you simply will not be 
able to emphasize as much? And maybe you have not had a chance 
to sit back and think about this or do the long-range planning, 
but it seems to me that as a country, as a Department, as an 
administration, and ultimately as this Committee that has 
oversight, that is something that we have to think about as a 
people, the mission of your Department, which I think, I will 
say, at least, fundamentally had to change after September 
11th.
    Your comments?
    Attorney General Ashcroft. I thank the Senator. Not only is 
the red light on, but it is flashing.
    I am glad you mentioned the rule of law. I can't think of a 
more savage interruption and disruption and violation of the 
rule of law than the events of September the 11th. They are war 
crimes, and to fail to prosecute war crimes is to reinforce the 
idea that somehow we can forget about the rule of law.
    I believe we need to send a message to the world that 
America does not tolerate the disruption of the rule of law, 
the slaughter of innocents, war crimes. So I think the 
President has a duty, a solemn duty, to constitute a commission 
to resolve the war crimes issue.
    It is not as if war crimes issues are not a part of the 
everyday discourse of the world seen by our allies and our 
enemies alike. I think a number of members of this Committee 
have visited the Hague and have actually witnessed proceedings, 
which I would be surprised if they are not ongoing today, where 
atrocities against other nations are being remedied in a war 
crimes tribunal setting that has very similar language and 
structure to the language and structure proposed by the Order 
of the President.
    This Order of the President talks about openness. It talks 
about evidence needing to have probative value. It talks about 
the kinds of votes that would have to be taken in order to make 
sure that a verdict is appropriate.
    And I believe the Order signals enough in terms of respect 
for those rights of the accused that the Department of Defense 
will act appropriately and be--as a matter of fact, I expect it 
to. I just want you to know that I believe that there are 
fundamental rights at stake here, and it is the right of the 
American public to expect not to be abused by war criminals and 
that the President has a duty and responsibility, in his words, 
I think, to bring them to justice or to bring justice to them. 
And this is a part of getting that done.
    Senator DeWine. Do you want to take a crack at the second 
part of the question?
    Attorney General Ashcroft. It is said that those 
organizations that have too many priorities express no priority 
at all. I recently totaled up the way the Justice Department 
has grown, and I have found that in our records we had stated 
that there are 56 priorities for the Department of Justice.
    Chairman Leahy. You may want to submit all 64 for the 
record, General.
    Attorney General Ashcroft. Pardon?
    Chairman Leahy. Feel free to submit the 64 for the record.
    Attorney General Ashcroft. I said 56.
    Chairman Leahy. Oh, 56. You can submit them for the record.
    Attorney General Ashcroft. That is inflation for you.
    [Laughter.]
    Attorney General Ashcroft. But, anyhow, it might as well be 
64. If you try to do everything, perhaps you can't do anything 
well.
    It is pretty clear to me that there are some things that we 
might not do well, but we better do well the job of preventing, 
as well as possible the job of preventing terrorism.
    Now, I have some reticence about saying that because 
preventing terrorism is a very difficult job. We witnessed this 
week the carnage in Israel. It is a society that has far fewer 
freedoms than we do and a far greater investment in terrorism 
detection and prevention, and yet 25 innocents were slaughtered 
in Israel this last week in terrorist activities.
    So it is with that in mind that it is an awesome mandate to 
try and focus our energy, and there may be some things we won't 
do at the same level of priority we did before because we 
understand that saving lives is the highest priority.
    Senator DeWine. Thank you.
    Chairman Leahy. Thank you.
    Senator Schumer?

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

    Senator Schumer. Thank you, Mr. Chairman, and thank you for 
holding these hearings. And I want to thank you, Mr. Attorney 
General, for being here, and we understand the large job you 
have ahead of you and appreciate all your efforts, whether we 
agree with all of them or not on that behalf.
    Let me say that you gave a strong, eloquent statement about 
the danger before us when you opened and how you needed to get 
every tool that you could to fight terrorism. I think that is 
something that most Americans in one degree or another would 
agree with.
    But it seems to me that there is one place where you are 
not seeking that tool at all, and that is the right of illegal 
immigrants--or whether, to find out whether illegal immigrants 
have guns, particularly the people on your detainee list.
    Now, there was an article in the New York Times that said 
that the people in the FBI want this power, want this ability, 
and the Justice Department has overruled them. I was troubled 
to read that when the FBI ran an initial check as to whether 
some of these detainees, 186 of them, had purchased guns, that 
two had, and when the ATF checked its database, they found out 
that 34 had purchased guns.
    I don't have to tell you that for all illegal immigrants, 
and for most legal immigrants, they have no right to a gun. And 
this would seem to somebody, to most with any knowledge of law 
enforcement to be an important tool that you could use in 
helping make us safe.
    And so my questions are going to be all about this because 
I am little befuddled. We are looking for new tools in every 
direction. I support most of those. But when it comes to the 
area of even illegal immigrants getting guns and finding out if 
they did, this administration becomes weak as a wet noodle. And 
the question is why and how we can change that.
    So I would like to ask you a few questions about that. I 
would note that most people read the law to allow you to do 
this right now. In the Federal Register of November 25, 1998, 
it says, ``Routine Use C''--C is the category that deals with 
this--``provides the necessary authority for further 
coordination among law enforcement agencies for the purpose of 
investigating, prosecuting, and/or enforcing violations of 
criminal or civil law or regulation that may come to light 
during NICS operations.'' That seems pretty clear.
    And so I just want to ask you a couple of questions about 
that. The first is: Do you believe that you do not have the 
right right now to ask for checks? We ask for checks of these 
illegal immigrants' immigration status, and we look at have 
they violated other laws. Do you believe you don't have the 
right to ask, to check whether they have purchased a gun 
illegally?
    Attorney General Ashcroft. I believe I could ask an 
immigrant whether or not he or she has purchased a gun 
illegally. I don't think there is any problem with me asking 
any citizen whether or not they have purchased a gun 
illegally--
    Senator Schumer. Do you believe--
    Attorney General Ashcroft. --or a permanent resident alien 
or an illegal alien.
    Senator Schumer. Do you believe--then if you could do that, 
is there anything wrong with checking the database you now 
have, the NICS system, to see if they have done it, to see if 
they are telling the truth?
    Attorney General Ashcroft. It is my belief that the United 
States Congress specifically outlaws and bans the use of the 
NICS database, and that is the of approved purchase records for 
weapons checks on possible terrorists or on anyone else, that 
the--
    Senator Schumer. I would say most, in all due respect, Mr. 
Attorney General, most disagree with you. But let's just assume 
that is the case. Why didn't you ask us for--you asked us for a 
whole lot of things in the anti-terrorism bill, a whole lot of 
different things that you said new circumstances required us to 
need. A, why didn't you ask us for that authority if you 
believe you don't have it? Which most people do. And, B, would 
you support legislation that I will drop in tomorrow to give 
you that authority?
    Attorney General Ashcroft. Well, I would be very pleased if 
you would send me legislation. I will review it. If Congress 
passes a law to help us fight terrorism by keeping guns out of 
the hands of illegal aliens and other individuals that should 
not have guns in their possession, I will fight to sustain the 
law--
    Senator Schumer. Right, but in all due--
    Attorney General Ashcroft. --and I will enforce the law.
    Senator Schumer. In all due respect, sir, I am asking you a 
slightly different question--two slightly different questions. 
Number one, why wasn't this asked for in the counter-terrorism 
bill, a bill I supported--in fact, I took your side against my 
chairman on some of the issues there. Why didn't we ask for it 
then if it was at least ambiguous? And, B, why not support it 
right now? I appreciate the fact that you would review it if I 
sent it to you, but let's assume that it is very simple 
legislation that simply allows NICS checks of illegal 
immigrants, of those, for instance, that you have detained. Why 
can't you just tell us right now that you would support such 
legislation? It seems perfectly logical to do. It seems, as you 
said--and I agree with you--that illegal immigrants here don't 
have more rights or even the same rights as American citizens. 
Why couldn't we just make that simple proposition and solve 
this problem right now? Because at least according to the New 
York Times--and I realize the difficulty in dealing with 
unnamed sources--there are large numbers of people in your own 
FBI who believe that would be a very important power for them 
to have.
    So, again, would you be willing to support such legislation 
or the concept? I am not saying--we could draft it together.
    Attorney General Ashcroft. I will say again to you that I 
don't want to make a commitment to legislation without seeing 
it. If you will send me legislation like that, I will review 
it. And I would, upon passage by the Congress of the United 
States, enforce it vigorously. The only--
    Senator Schumer. Just one final--I am sorry.
    Attorney General Ashcroft. May I?
    Senator Schumer. Please, please.
    Attorney General Ashcroft. The only recognized use now of 
approved purchaser records is limited to an auditing function, 
and I believe that my responsibility, which was rather 
forcefully provided to me as admonition as I took this job and 
took the oath of office, is to enforce the law. And I believe 
that the law prohibits in its current state any other use of 
approved purchaser records. That is a sub-category of data used 
by the FBI. So if you will send me legislation, I will review 
it, and we can confer about it.
    Senator Schumer. But you are certainly allowed to use the 
system because these people don't have the right to have a gun.
    Attorney General Ashcroft. I believe that the United States 
Congress, in enacting the law which created this database, 
limits the lawful use of this database, and I believe that it 
is my responsibility to live within the law.I don't want to 
hear two messages from this Committee, both in the same day, or 
on a variety of different days, not that you want me to enforce 
some laws and not other laws, and you want me to ignore laws or 
respect some rights and not other rights.
    I am very pleased to tell you that if you send me the 
legislation, I will review it, and if you pass the legislation, 
I will enforce it.
    Senator Schumer. Thank you, Mr. Chairman.
    Senator Hatch. Mr. Chairman, if I could just make one 
comment. As one of the authors of the NICS legislation, which 
everybody admits has worked very well, one of the biggest parts 
of the debate was whether or not you could disclose matters in 
NICS because one side felt that if you did, it would be wrong; 
the other side felt if you did not, it would be wrong. And it 
got into a big mish-mash there, and so that is why the 
legislation turned out the way it is. But I will be interested 
in whatever the Senator suggests.
    Attorney General Ashcroft. My staff has added a piece of 
information here that may or may not be of interest. Approved 
purchaser records are those that are denied use in the law. 
Denied purchaser records can be used and are being used. So 
there is a difference. The law is as the Congress wrote it, and 
I intend to enforce the law as it has been written and signed 
by the President.
    Senator Hatch. We wrote it that way because we had to. It 
was the only way we could pass it.
    Senator Schumer. Mr. Chairman, if you don't run the checks, 
you are not going to know who should be denied.
    Attorney General Ashcroft. I don't think we--we are ships 
passing in the night, or maybe I am a rowboat passing you as a 
ship. I may--whatever it is here, I don't mean--
    Senator Schumer. Well, I hope we can be rowing in the same 
direction on this issue.
    Attorney General Ashcroft. All right. We will work on it.
    Senator Schumer. Okay. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    The Senator from Alabama?
    Senator Sessions. Attorney General Ashcroft, 
congratulations to you and your staff for the extraordinary 
effort, including the FBI, Immigration, and all of the agencies 
that you have marshalled and invigorated to do everything 
possible to protect the people of America from further attacks. 
I think it has got to be concluded that the things you have 
done have helped prevent further attacks. I think few of us 
after September 11th thought we would be this far along without 
additional attacks, so some things you are doing are working.
    Now, we have had a lot of criticisms and suggestions and 
explicit condemnations of actions saying that they violate laws 
of the United States or the Constitution of the United States. 
Let me simply ask you directly the same question I asked Mr. 
Chertoff. Is there anything that you have done and the 
Department of Justice has promulgated that you believe violates 
the Constitution or any statutes of the United States in your 
effort to fight terrorism?
    Attorney General Ashcroft. I believe that every action we 
have taken is authorized by the Constitution of the United 
States and is lawful.
    Senator Sessions. I think that is important, Mr. Chairman, 
and I know a lot of people on our Committee and others around 
the country are saying they have concerns. Well, when this all 
came up, I could see people having concerns. But after we have 
had some time here to look at it, I think in my opinion, as a 
Federal prosecutor of 15 years and just as a person who can 
read plain language in cases, we are looking at a circumstance 
where no laws of this country are being violated, no precedent, 
no historical rights that we have come to be known have been 
violated by what you have done. And I think we ought to 
recognize that. If anybody has a specific, explicit example of 
an action that is in violation of the law, let's have them say 
it. Just saying concerns is not enough. And to use 
irresponsible and reckless language, I think, accusing the 
Department of Justice prematurely perhaps without full study of 
violating the law and the Constitution, as some have, I think 
does have the tendency to erode unity in the country and 
undermine respect for our leadership in a time of war, and that 
just ought to be carefully done.
    So I would just note that Senator Schumer had an excellent 
hearing earlier this week, and we had some of the Nation's 
foremost experts on military commissions and professors. We had 
two well-known Democratic, liberal professors, Cass Sunstein 
and Laurence Tribe, among others, who I believe quite clearly 
indicated their firm belief that the commissions are legal. 
Cass Sunstein indicated the only question is how they would be 
conducted. I think that is a real final, I would say, 
affirmation of the legality of what you are doing here.
    One of the questions that I was somewhat troubled about 
when I first heard it as a lawyer and as a prosecutor who knows 
the delicacy of lawyer-client privilege was the suggestion that 
you would monitor communications between the lawyers and 
clients. That was blown up in the newspapers in a way that 
caused me concern. But as I have understood that, before you 
would monitor--at this point you have concluded only 16 people 
in the whole Federal system might be subject to this 
monitoring. Is that correct?
    Attorney General Ashcroft. To be subject to it, you have to 
be subject to special administrative measures, and our 
population of that category is now 16 out of 158,000 detainees 
in the Federal prison system. That is not in the INS system but 
the Federal prison system.
    Senator Sessions. Well, that is very few, and they are 
targeted in a way that I think is rational. The Weatherford 
case that you cited, which I had not been familiar with and put 
a board up on the board, the Weatherford case certainly 
suggests that the right to attorney-client communication is not 
absolute. The Attorney General's Manual, which I had pulled, 
that Attorney General Janet Reno has cited, provides 
circumstances--very controlled and very carefully done, but it 
does provide circumstances, does it not, for monitoring 
attorney-client, seizing attorney-client records, and other 
things under certain limited circumstances?
    Attorney General Ashcroft. I am not an expert in the manual 
as promulgated by my predecessor, but we do not believe the 
right to be without reason, and the Weatherford case is our 
guide.
    Senator Sessions. Well, I remember Justice Goldberg made 
the comment once that the Constitution is not a suicide pact. I 
don't think we are required to assume that we are prohibited 
from doing things that are legitimate under the circumstances. 
And I believe from my experience as a prosecutor--I know in 
experience dealing with drug dealers and Mafia people that 
those criminals have conducted criminal enterprises from inside 
the jail. Isn't that true in your experience as a former 
Attorney General?
    Attorney General Ashcroft. Yes, it is.
    Senator Sessions. And it seems to me that the mechanism you 
have devised is the way to do it. It provides for, Mr. 
Chairman, an entirely independent group to monitor the 
conversations only after the jailed person and his lawyer have 
been told the conversations will be monitored. They would be 
required by law to not utilize that information unless they 
found within those communications actions or comments that 
would further criminal attacks against the United States and 
that they would not be given to the prosecutors who are 
prosecuting the individual in jail for the criminal offense. 
Isn't that correct?
    Attorney General Ashcroft. That is correct.
    Senator Sessions. And, Mr. Attorney General, would you use 
your supervisory power, such as it is, would you use your power 
to prosecute criminals if any of those people who monitored the 
conversations breached that wall as they were ordered to do?
    Attorney General Ashcroft. I would prosecute to the fullest 
both with disciplinary action and legal action those who would 
abuse this responsibility and trust.
    Senator Sessions. Mr. Chairman, I would just conclude with 
the words of Justice Jackson who discussed in the Nuremberg 
military commission trials, he said this--we are going to be 
judged not so much on the procedures we set forth--those are my 
words. I think you will be judged, the administration and the 
President will be judged not just on the procedures and words 
used to set up these commissions but on whether justice is 
done. He said this: ``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.''
    I think that is our challenge, to make sure that when this 
is over that occurs, and I am encouraged by the fact that the 
President of the United States has taken this burden upon 
himself personally to guarantee this, and history will hold him 
to account if they are not fair.
    Thank you.
    Chairman Leahy. Senator Durbin?
    Senator Durbin. Thank you, Mr. Chairman. And, Mr. Attorney 
General, thank you for joining us today and taking our 
questions.
    On November 10th, before the United Nations General 
Assembly, President Bush said, ``We have a responsibility to 
deny weapons to terrorists and to actively prevent private 
citizens from providing them.''
    I think the President was right. Do you agree with his 
premise?
    Attorney General Ashcroft. I think we do have a 
responsibility to deny weapons to terrorists.
    Senator Durbin. I also believe that you were correct 
earlier in your statement when you said that we need to focus 
on prevention, not just protection. Let me give you a few 
examples of things that I think we could do to deny weapons to 
terrorists and to prevent terrorist activity as opposed to just 
prosecuting those who have committed these heinous crimes.
    Last year, Connor Claxton, who was accused of being a 
member of the Irish Republican Army, testified that he had 
purchased firearms at gun shows in South Florida to smuggle 
back to Northern Ireland. On September 10th, the day before the 
attack at the World Trade Center, Mohamed and Ali Boumelhem, 
members of Hezbollah, were convicted on charges of conspiring 
to smuggle guns and ammunition to Hezbollah. The FBI had 
observed these two individuals buying weapons at gun shows in 
Michigan. On October 30th, long after September 11th, when we 
were clearly doing everything we could to stop this kind of 
activity, Mohamed Navid Arwar, a Pakistani, pleaded guilty to 
immigration violations and illegally possessing a firearm. Mr. 
Arwar bought his firearm at gun shows in Michigan.
    You passed out--someone did on your behalf--this Al Qaeda 
manual, which you showed us earlier, and I had a chance to just 
glance through it very quickly. Here is their advice to their 
operatives and terrorist cells around the world in buying guns: 
``Don't lengthen the time spent with the seller. It's important 
to depart immediately after purchasing the weapons.'' The quote 
that was given earlier from another training manual that was 
disclosed in Kabul, gives this is advice to terrorists: ``In 
countries like the United States, it's perfectly legal for 
members of the public to own certain types of firearms. If you 
live in such a country, obtain an assault rifle legally, 
preferable an AK-47, or variations, learn how to use it 
properly, and go and practice in the areas allowed for such 
training.''
    Mr. Attorney General, many of us supported your request for 
additional authority to fight terrorism despite criticism from 
the left and from others that we were invading the rights in 
the Bill of Rights. We believe that you and the President and 
America needed the tools to fight terrorism.
    My question to you follows on earlier questions by my 
colleagues. Why is it when it gets to the Second Amendment, 
when it gets to this question of purchasing firearms, 
particularly by illegal immigrants who are here in the United 
States, who have connections with terrorism, that there is such 
a blind eye from the Department of Justice? The President said 
about military tribunals, he reminded us we must not let 
foreign enemies use the forums of liberty to destroy liberty 
itself. Couldn't the same be said about some of our rights 
under the Bill of Rights? Should we let our foreign enemies use 
the rights of Americans to bear arms to attack and destroy 
liberty itself?
    The bottom-line question is this, following Mr. Schumer: 
Can we expect this administration to come forward proactively 
rather than reactively to deal with this proliferation of guns 
to the hands of terrorists and would-be terrorists that clearly 
threaten Americans and may threaten our men and women in 
uniform overseas?
    Attorney General Ashcroft. Obviously, the balancing of the 
rights of individuals is the responsibility of the development 
of policy. I have indicated to Senator Schumer that I agree 
that illegal aliens should not be armed and that I would be 
very pleased to consider proposed legislation that would 
enhance our security by making it clear that they are not to be 
armed.
    In all of the efforts of the Al Qaeda operation, they look 
for avenues of freedom which they can then exploit. They look 
at our judicial system and seek to exploit it. They look at 
freedom of speech and seek to exploit that. And we always have 
to balance very carefully when we legislate to curtail their 
activities in ways that respect the freedoms, understanding the 
value of the freedoms, but also understanding the vulnerability 
that may come if there are those who seek to abuse them. It is 
with that--
    Senator Durbin. May I ask you this question--
    Attorney General Ashcroft. --in mind that I am willing to 
review legislation that you would send me in this respect.
    Senator Durbin. Would you agree, then, that illegal 
immigrants to this country and would-be terrorist should not be 
able to buy guns at gun shows and ship them back to their 
terrorist organizations overseas or use them in some conspiracy 
or plot in the United States? Would you agree with that?
    Attorney General Ashcroft. Well, the Brady law currently 
prohibits illegal aliens, felons, and terrorists from buying 
guns. So I would agree with that. I will enforce that to the 
extent that I--whenever we come upon those--
    Senator Durbin. Well, what about the gun shows?
    Attorney General Ashcroft. You just cited for me the fact 
that illegal aliens were being prosecuted, via the Justice 
Department, for possessing such weapons.
    Senator Durbin. But how many have we missed?
    Attorney General Ashcroft. Well, I can't tell you how many 
we have missed--
    Senator Durbin. Because we don't check their backgrounds at 
gun shows, Mr. Attorney General. That is the whole point of 
changing the law. That is why we need your help and the support 
of the administration. We have worked with you to give you more 
powers to deal with terrorism. Isn't this an important weapon 
for you to have to fight terrorists who are buying guns at gun 
shows?
    Attorney General Ashcroft. You know, the gun shows provide 
a basis for the sale of guns by individuals, not so much at the 
gun show but frequently contacts are made there that are 
subsequently involved in private treaties over the sale of 
guns. Federally licensed gun dealers selling guns at gun shows 
are subject to the Brady law, and the Brady law does prohibit 
all felons, including terrorists and illegal aliens, from 
purchasing guns.
    Senator Durbin. It is such a small part of the problem. If 
we are going to deal with the whole problem and give you the 
authority to deal with it effectively, I hope the 
administration will be as forthcoming when it comes to the 
Second Amendment as they have on other amendments, have an open 
mind on finding ways to make America safer. I believe you are 
dedicated to that. I think the President is by his very words. 
But if we can cooperate and put something in place to keep 
these guns out of the hands of terrorists at gun shows, I think 
it will make America safer.
    Thank you.
    Attorney General Ashcroft. I would be happy to confer with 
you.
    Chairman Leahy. Thank you, Senator Durbin.
    Senator McConnell, who has been very patient.

  STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE 
                       STATE OF KENTUCKY

    Senator McConnell. Thank you, Mr. Chairman. When you are 
the last man, you have no choice but to be patient. Coming back 
on this Committee after all these years as the least senior 
member reminds me that when you get down to the end of the 
table, everything has been said, but not everyone has yet said 
it.
    [Laughter.]
    Senator McConnell. In listening to my colleagues, Mr. 
Attorney General, the first thing I want to do is congratulate 
you. We are exceedingly proud of you as a former member of this 
body for the truly outstanding job that you are doing, were 
doing before 9/11 but particularly since 9/11.
    The best evidence, it seems to me, that you have won 
already in the public discussion over military commissions is 
that this hearing seems to be becoming a hearing about gun 
control. Obviously many of our friends on the other side feel 
that the military commission argument has largely been lost. 
But at the risk of bringing up an argument that we have already 
essentially won, because I think you are absolutely right on 
this, right on the Constitution, right on the propriety, and 
right on the necessity of having military commissions available 
to the President during the prosecution of this war, I think 
you have won that argument. But I do want to, even though it 
has been won, make my one question on that subject.
    On Tuesday, one of the members of this Committee asked 
whether a trial by court martial rather than a military 
commission would work for war criminals. Like you, I think 
there would be operational problems with using courts martial 
rather than military commissions in these kinds of 
circumstances.
    For example, I don't think we should have to perfectly 
establish the chain of custody of evidence that our armed 
forces came across on some Afghan battlefield or in a cave. But 
aside from the operational problem inherent in using a trial by 
courts martial for foreign war criminals, do you think it would 
be perverse, really, to give war criminals all the privileges 
and procedures that we give to American citizen soldiers under 
the United States Code of Military Justice when our soldiers 
are not war criminals? This would also send a perverse message 
to foreign war criminals, go ahead and commit war crimes, and 
you will be treated just like an American soldier who does not 
commit war crimes.
    Would not treating foreign unlawful combatants just like 
American lawful combatants remove a disincentive for committing 
war crimes?
    Attorney General Ashcroft. I thank the Senator. I believe 
the President has two responsibilities:
    One is to see to it that his Justice Department vigorously 
prosecutes laws that are passed/enacted by the Senate and House 
and, in conjunction with the President, signed into law.
    There is another responsibility when he is conducting a 
war. That is to make sure that the world does not commit war 
crimes against the citizens of the United States, and in 
resolving each of those issues, it is important for him to 
protect the national interests at the highest level possible.
    Because the constitutional Founders did not expect us to 
have war conducted by Committee, they vest in the President of 
the United States very substantial powers and focus those 
powers in him for the conduct of the war, and that includes the 
creation of war crimes commissions.
    The President of the United States, while he is obviously 
interested in protecting the national interests and intends to 
do so vigorously, is committed to full and fair hearings. I 
think, as Senator Sessions has indicated, the world will judge 
us based on whether or not we have full and fair hearings. But 
let us never forget that the world also understood, and 
understands, the nature of the war crimes perpetrated and also 
understands that there are conditions during the time of war 
which might mean that it is inappropriate to have certain 
procedures which might reveal or place in jeopardy the 
interests of the United States about our tactics, about our 
troops, about our positions or even vulnerabilities which we 
might have that might be disclosed; so that there is clearly a 
need to tailor the proceedings not to avoid fairness or 
fullness of opportunity, but to make sure that the interests of 
the United States are protected.
    It is in that respect that I think we should make it clear 
that we are not going to allow war criminals to try and exploit 
the justice system of the United States, so as to perpetrate an 
attack upon the United States designed to destroy that justice 
system, whether that justice system be in the criminal justice 
system or the Uniform Code of Military Justice.
    For that reason, I think the President assigned the 
responsibility to the Secretary of Defense that he create a 
system attentive to these principles that was full and fair, 
but was designed to protect the United States of America, and I 
hope that the system also signals unmistakably to the world 
that innocent lives are not to be destroyed by war criminals 
and such activity will not go unnoticed or uncompensated or 
unresponded to by the United States.
    Senator McConnell. Again, Mr. Attorney General, I want to 
congratulate you. I think you have won the public discussion on 
military commissions. You have done it in an outstanding way, 
and we thank you very much for being here today.
    Chairman Leahy. Attorney General, I think everybody would 
assume that we have demonstrated very much to the world that we 
do not take lightly these attacks on our soil. All you have to 
do is turn on the evening news and see the tens of billions of 
dollars of effort, bombs being dropped, our special forces, 
Marines, even giving up their lives to carry that out. We also 
want to demonstrate to the American people, at the same time, 
that we also have an equal commitment to preserving those 
liberties that have made us free.
    Attorney General Ashcroft. We could not agree more 
profoundly on that, Mr. Chairman.
    Chairman Leahy. I understand.
    Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman, and General 
Ashcroft, thank you for your patience and testimony today. 
Hopefully, I can bring up a few subjects that have not been 
discussed, and I appreciate your help in getting through a few 
questions, if we could.
    Obviously, the cumulative nature of the Department's 
actions over the past few months, the expansion and the 
eavesdropping authority in the terrorism bill, the expansion of 
use of e-mail searching with technologies like Carnivore, the 
compilation of databases on Arab Americans, and just this week 
a request made to the Intelligence Committee to broaden the 
FISA wiretap authority even further brings a lot of questions 
in America that maybe we may just be going too far, too fast.
    Given that, I guess my first question is, and given that 
really the safeguards in judicial review that have been in 
place before on some of these wiretap and eavesdropping 
measures are being eased, what do you believe should be the 
process of oversight? And to be specific, if I could, if we are 
expanding the watching capacities of the FBI and the Justice 
Department, who should be watching the watchers in our 
oversight?
    Attorney General Ashcroft. You remind me of a spate of 
cartoons that has appeared in the last week, and it is 
generally a kid sitting on Santa's knee and the Santa saying, 
``I know when you have been sleeping. I know when you have been 
awake. I know when you have been bad or good,'' and the kid 
looks up and says, ``Who are you--John Ashcroft?''
    [Laughter.]
    Senator Cantwell. I am not sure everybody in America is 
laughing at that.
    Attorney General Ashcroft. Well, let me apologize if that 
is offensive to you. I do not take it lightly. I do know that 
the things I do are serious, although I try not to take myself 
too seriously.
    I think this Committee has a valuable and appropriate 
oversight responsibility. It is why I was eager to respond to 
the Committee. I volunteered to come in on Thursday of last 
week and was told that Thursday would be an inappropriate day 
last week, so I am here this week.
    I do not take lightly your responsibility, and I do not 
take lightly the responsibilities that we have to enforce the 
law, but neither do I take lightly the responsibility we have 
to safeguard the liberty of individuals. That is why, when we 
wanted additional authority and we seek additional authority, 
we do not take it lightly. An authority that we do not have, we 
come and ask this Congress for and work with them on.
    The Intelligence Committee has recently sought to make four 
adjustments in the law. Two of them are really the corrections 
of what have to be viewed as almost typographical sorts of 
housekeeping things that were with the U.S.A. Patriot Act, and 
another two are minor adjustments that the Intelligence 
Committee believes would be appropriate.
    But I fully agree, if you are suggesting, that you have a 
solemn responsibility to see to it that we do not go too far, 
and I think that is always an appropriate question, and it is a 
question that I never want to fail to ask myself.
    Senator Cantwell. Well, in following that line of 
questioning, particularly in the areas and use of Carnivore and 
Magic Lantern, which is technology that I believe that the FBI 
is using and, in our expansion in the antiterrorism bill, I 
mean, I just want you to know I am voting for that legislation 
and giving my constituents the assurance that we were going to 
monitor carefully and have oversight. I am asking you now if 
the Department of Justice will meet with Congress on a regular 
basis, maybe four times a year, in closed-door session, if 
necessary, and provide information to us on the usage of 
Carnivore and Magic Lantern as eavesdropping on electronic mail 
that I think America is concerned about.
    Attorney General Ashcroft. I need to try and clarify 
something. Carnivore was a proposal, which has been very 
significantly adjusted to meet a number of concerns expressed I 
think by the people who have dealt with you, and I have dealt 
with, and I dealt with when I was in the Senate. It has now, 
with those adjustments, been referred to by a different name, 
DCS-1000 I believe is the name of it.
    I am interested in working with the Congress to make sure 
that capability is appropriately deployed and respectfully 
deployed and would be pleased to find a way to do that, and we 
will work with you to get that done.
    Senator Cantwell. So you think possibly meeting four times 
a year, reports on the usage of that technology--I know that 
you mentioned earlier, and I know that sometimes headlines can 
be unfair, but in probably the category of headlines that John 
Ashcroft would hate, yesterday's ZDNet online publication had, 
``Warning: We know what you're typing, and so does the FBI.''
    The article goes on to talk about how the expanded 
authority under the Patriot Act could mean that the FBI would 
be using the Magic Lantern technology, which really creates a 
worm, if you will, on an e-mail. So the suspect who may be your 
target then sends an e-mail to another individual, thereby 
sending this worm and virus and then leaving them open to 
having their keystrokes monitored.
    I think, in the interest of not wanting to have more 
headlines like this, if we can work more closely together to 
understand how this technology is used and making sure that 
Americans' e-mails, under this broad expansion of power to 
catch terrorists, are not being overly used and invading U.S. 
citizens' rights to communicate electronically.
    Attorney General Ashcroft. I welcome the opportunity for 
the Department to work with you toward these objectives.
    Senator Cantwell. Thank you. If I could, I appreciate your 
signing of the U.S.-Canadian agreement on cooperation on 
immigration and asylum. Obviously, we are in the last days here 
of working very diligently on the Northern border issues. One 
of the concerns that we have, in the antiterrorism bill, we 
authorized the tripling of Northern border inspectors, INS, 
Customs agents, and yet we, in the supplemental that has been 
submitted by the administration, have very few dollars for 
those activities.
    So I am asking whether you support the homeland defense 
measures here in the Senate that would appropriate dollars for 
that effort that we did authorize in the Patriot Act.
    Attorney General Ashcroft. Senator, I believe we need 
additional resources along the Northern border. We have about 
5,500 miles of border with Canada. Even with the assignment of 
National Guard troops to try to back-fill some of the 
overstressed individuals there, we are at a very low number. In 
some respects, we have less--I think it is about one person per 
every 100 miles, if we count the way the shift would have to be 
so that people do not work full time all of the time.
    I will urge upon the administration the devotion of the 
appropriate resources to provide us with not only a secure 
border, but with the border that gives us the facility and flow 
necessary to keep commerce going and the valuable trade between 
our countries.
    I was in Detroit and Ottawa both this week earlier, and we 
have about $1.3 billion a day that crosses our borders in trade 
between the United States and Canada. About $1 out of every $5 
of trade the United States does anywhere in the world is with 
Canada. If we do not have the capacity to move that trade 
expeditiously, we hurt ourselves economically very badly. That 
is the basis for our effort to provide additional cooperation.
    This President has instructed me, in the homeland defense 
and security arena, to work with the Canadians to the advantage 
of both of our countries, and I will try and work with you in 
the same respect.
    Senator Cantwell. I know my time has expired, Mr. Chairman, 
but if I would, I think I will submit one last question on the 
U.S.-Canadian agreement as it relates to biometrics. There is a 
mention in there of agreement working with Canada on the 
permanent residency, you know, green card status and use of 
biometrics.
    I think what our language in the antiterrorism bill 
envisioned is more working on visas of people seeking to come 
into the country on a temporary basis and using some sort of 
biometric standard there to positively identify people that we 
do not want into the country as opposed to people who are 
working here on a permanent basis having to submit, when they 
actually already do, for those green card standards, but I will 
submit a question on that.
    Thank you.
    Attorney General Ashcroft. Thank you.
    Chairman Leahy. The Senator from North Carolina?

 STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM THE STATE 
                       OF NORTH CAROLINA

    Senator Edwards. Thank you, Mr. Chairman.
    Good afternoon, Mr. Attorney General.
    Attorney General Ashcroft. Good afternoon.
    Senator Edwards. Appreciate your patience. I know this has 
been a long hearing.
    We want very badly to make sure that you have the tools you 
need to protect the American people, including new laws and new 
measures, but while we are protecting American lives, we also 
need to be certain that we protect American values and American 
principles.
    It seems to me that these times of crisis and times of war 
are times when those principles and values are most at risk, 
when people get caught up in the passion of doing what is 
necessary under the circumstances. We have seen in the past, 
during World War II, the internment of over 100,000 Japanese 
Americans by a great President. I am sure at that time that was 
a very popular move, but it is not something, I do not think, 
that we are very proud of today. I am not suggesting that these 
military tribunals are equivalent to that, but whatever we do, 
I want to make sure that your children, and mine, and our 
grandchildren will be proud of what we have done.
    My concern about the whole issue of military tribunals is 
not the notion of using them. I can easily see that there would 
be circumstances in which it would make sense to use them. My 
concern is that this directive, this order, is extraordinarily 
broad, and I want to ask you about three or four areas, if I 
can, to see if we can make sure that some of the things that 
the order would appear to allow, in fact, are not something 
that you intended or intend to do.
    Number one, the order says that a person who is subject to 
the order shall be detained, and then goes on to say, if that 
individual is tried--so subject to the order you shall be 
detained, if you are tried. So, on the face of the order, it 
would appear to allow unlimited detention without trial.
    First, can you tell us today that that is not something 
that will happen under this order?
    Attorney General Ashcroft. Senator, I believe, and I am 
trying to recreate some of this order in my mind, but I believe 
that when you get to the trial part, it talks about when tried, 
and I think that is the intent of the order.
    Senator Edwards. Well, I am looking--excuse me for 
interrupting you--I am looking at the language right now. ``If 
the individual is tried,'' is the language of the order, at 
least the language that I have in front of me.
    Attorney General Ashcroft. I think there is another part of 
the order.
    Senator Edwards. Without getting caught up on the 
semantics, though, you do not intend to use this order to 
detain people and detain them for an unlimited period of time 
without trial; is that true?
    Attorney General Ashcroft. I believe it is completely fair 
to say that.
    Senator Edwards. Second, there is a provision in the order 
that says the President or the Secretary of Defense makes the 
final decision. I believe you are familiar with that provision.
    Attorney General Ashcroft. Yes.
    Senator Edwards. On the face of the order, that would allow 
the President or the Secretary of Defense to, in fact, overturn 
an acquittal by a tribunal; in other words, to come in after 
the case has been tried, there has been an acquittal, and the 
Secretary of Defense decides we do not agree with that, we are 
going to overturn it. And, in fact, on the face of the order, 
it would allow the Secretary of Defense alone to impose the 
death penalty.
    What I want to know is, is that the intent of the order or 
can you tell us today that if, in fact, there is an acquittal 
at the tribunal level, that that will not be overturned by the 
Secretary of Defense?
    Attorney General Ashcroft. I believe it is settled practice 
of war crime commissions that you cannot overturn an acquittal. 
I feel confident in telling you that is not the intention of--
    Senator Edwards. That will not occur.
    Attorney General Ashcroft. I do not believe that to be 
intended by the order.
    Senator Edwards. Third, burden of proof. There is nothing 
in the order that deals with the issue of burden of proof. 
That, on its face, would allow someone to be convicted and, in 
fact, receive the death penalty on a greater weight of the 
evidence standard or a preponderance of the evidence standard, 
51 percent versus 49 percent.
    Can you tell us that, in order for someone to be convicted 
under this order and for the death penalty to be imposed 
against them, that you will require a significantly higher 
burden of proof than preponderance of the evidence or greater 
weight of the evidence, which is only used in civil cases in 
this country?
    Attorney General Ashcroft. I think it is pretty clear that 
the President has asked the Secretary of Defense to develop a 
set of regulations and procedures governing the war crimes 
commissions that are full and fair. Admission of such evidence 
would be evidence of probative value. There is a provision for 
the accused to be represented by counsel. The conviction and 
sentence would be upon two-thirds majority vote.
    Senator Edwards. Mr. Attorney General, excuse me for 
interrupting you, but the only thing I am asking you about--I 
am not asking you about either of those things--I am only 
asking you about the burden of proof. Will you require, in 
order for somebody to be convicted and the death penalty to be 
imposed against them, that the burden of proof be more than 
just a preponderance of the evidence?
    Attorney General Ashcroft. I think that is an issue which 
is still to be determined, and it would be beyond my power to 
speculate on that. The Secretary of Defense is formulating the 
procedures, and among those procedures may be items like 
appeals procedures and other instructions to those conducting 
the trials, but I cannot provide further information than to 
say that at this time.
    Senator Edwards. You are the Attorney General of the United 
States. You are an experienced lawyer. I am asking you whether 
you believe it is appropriate for somebody to be convicted and 
receive the death penalty based on 51 percent of the evidence? 
Do you or do you not, you, just you, personally?
    Attorney General Ashcroft. I am not going to try to develop 
a set of rules or regulations on that evidentiary standard or 
other standards at this time. That is the responsibility of the 
Secretary of Defense in regard to this very serious matter, and 
I would expect him to very carefully make judgments in this 
arena. I, personally, have not given that the kind of thought, 
at this moment, to say what exactly I would do were I to have 
the responsibility, which I do not have.
    Senator Edwards. Now you just mentioned a provision in the 
order that says that the conviction can occur on a two-thirds 
vote, as opposed to a unanimous vote. Does that mean that under 
this order, if there is a three-person tribunal, that somebody 
could be convicted, receive the death penalty and be executed 
based upon a 2-to-1 vote?
    Attorney General Ashcroft. I would believe that this states 
a minimum standard in its direction to the Secretary of 
Defense. It means that two out of three of the triers of fact 
have to come to a conclusion before a sentence could be 
imposed.
    Senator Edwards. Which means that if the tribunal is 
composed of three people, the case is presented, two of the 
three say that the death penalty should be imposed, one says it 
should not, it could be imposed, and the person could be 
executed; is that what you are saying?
    Attorney General Ashcroft. If you are talking about a two-
thirds rule, and if that is the rule that eventually is adopted 
by the Secretary of Defense, two out of three is two-thirds. I 
agree with that.
    [Laughter.]
    Senator Edwards. All right.
    Attorney General Ashcroft. U.N.-sponsored tribunals allow 
conviction on a simple majority, like the ones at The Hague and 
the ones that are litigating and adjudicating the atrocities 
against those in Central Africa, and it seems to me that--
    Senator Edwards. Excuse me, Mr. Attorney General, do those 
allow the death penalty?
    Attorney General Ashcroft. I do not know.
    Senator Edwards. I do not believe they do.
    Let me ask you one last area, the area of the whole 
question of appeals. We have seen in our court system--which 
most of us believe is one of the best, if not the best, in the 
world--over the last 2 decades, people who, based on later-
found evidence, DNA evidence, for example, have absolutely been 
found to not have been possible that they committed the crime.
    The White House counsel has said that a challenge can be 
made to the jurisdiction of the Court. Now you and I understand 
that the jurisdiction is very different than whether, in fact, 
the person committed the crime, whether they are guilty, 
whether evidence should have been admitted that would have 
shown that the person could not have committed the crime, all 
of those issues that go to the basic question, which I think 
most Americans are concerned about, about these kinds of 
issues, is did this person do it? Did they, in fact, do what 
they have been accused of doing?
    Do you believe that there needs to be a process that allows 
some appeal that looks at the fundamental question of how the 
trial was conducted, whether evidence was properly considered 
by the Court, and whether, in fact, there was evidence that was 
not considered by the Court that would have shown this person, 
in fact, did not do it, did not commit this crime?
    Attorney General Ashcroft. In the President's order to the 
Secretary of Defense to develop procedures here, I believe 
there is adequate latitude for the Secretary of Defense to 
develop a potential and a framework for--
    Senator Edwards. And is that something you believe should 
be done?
    Attorney General Ashcroft. I believe that the President and 
the Secretary of Defense, both according to the order, 
constitute appellate authorities, and I think those appellate 
authorities are consistent with systems that provide the kind 
of justice that is less likely to have error.
    Senator Edwards. The President and the Secretary of Defense 
are the people who decided the prosecution should be brought in 
the first case. Do you believe there needs to bean objective 
third party that looks at the trial, looks at the conviction, 
looks at the imposition of the death penalty, if that, in fact, 
has occurred, and looks at whether it should have happened?
    Attorney General Ashcroft. The Secretary of Defense would 
have the authority to develop appellate procedures under the 
order, military order, for the development of war commissions 
issued by the President. I believe that that authority is 
available to him, and if he chooses to confer with me about 
that, I will provide advice to him regarding appellate 
procedures.
    Senator Edwards. Do you believe, in fact, there needs to be 
a review, an objective review, by a third party. That is what I 
am asking you.
    Attorney General Ashcroft. I am going to reserve my 
comments to provide advice to the President and the Secretary 
of Defense regarding any questions they have for me regarding 
what should be or should not be added in terms of procedures 
for this order.
    Senator Edwards. Thank you, Mr. Attorney General.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Edwards.
    I think, as I hear this testimony, I think all of the more 
reason guidelines should be set by the Congress for military 
tribunals, especially on the question of preponderance of 
evidence, the death penalty, but I think we can do that.
    I would suggest that Senator Hatch, and I, and others at 
least have that discussion.
    Senator Hatch. Could I make just one last comment? I would 
like to read one person's defense of the military tribunal 
system, and let me quote it.
    ``It is of the utmost importance that no information be 
permitted to reach the enemy on any of these matters. How the 
terrorists were so swiftly apprehended; how our intelligence 
services are equipped to work against them; what sources of 
information we have inside al Qaeda; who are the witnesses 
against the terrorists; how much we have learned about al Qaeda 
terrorist methods, plans, programs and the identity of other 
terrorists who might be or have been sent to this country; how 
much we have learned about al Qaeda weapons, intelligence 
methods, munitions plants and morale.''
    ``All of the testimony given at a trial bears, to some 
degree, upon these matters. There is no satisfactory way of 
censoring and editing this testimony for the press without 
revealing, by statement or significant omission, the answers to 
many of the questions which may now be puzzling our enemies. We 
do not propose to tell our enemies the answers to the questions 
which are puzzling them. The only way not to tell them is not 
to tell them. The American people will not insist on acquiring 
information which by the mere telling would confer an untold 
advantage upon the enemy.''
    Now these are not my words. These are the words of Franklin 
Delano Roosevelt's Attorney General, Francis Biddle, in 
announcing the military tribunal that FDR constituted in 
connection with the Quirin case. Now I merely substituted ``al 
Qaeda'' for ``Germany'' and the word ``terrorist'' for 
``saboteur.''
    The reason I read this is to provide some perspective. The 
issues we are confronting here are not new. The same issues 
that concern us today, concerned our forefathers during World 
War II, and the same reasoning that persuaded FDR to constitute 
a military tribunal still ring true today.
    So, if I could submit for the record the full remarks of 
Attorney General Biddle, I think it would be appropriate.
    Chairman Leahy. We will close with this, just to, now that 
you have raised that point, note that on that tribunal, not 
only was there, of course, congressional authorization, but I 
would also point out that history has now shown the driving 
force behind that tribunal was to cover up the mistakes of J. 
Edgar Hoover at a time when he was about to receive a medal 
from Congress--
    Senator Hatch. I do not believe there was congressional 
authorization.
    Chairman Leahy. Be that as it may, this was, had there been 
an open trial, they would have found the evidence came from two 
of the saboteurs who had to beg the FBI to arrest them. I think 
we have a far different FBI today, a far better FBI today. I 
think that the Attorney General and Director Mueller deserve a 
lot of credit for that.
    General, I thank you. You have been here for almost 3 
hours. You have been patient. You know there will be other 
questions that will be asked for you. I appreciate your 
comments earlier that you were perfectly willing, and even 
eager, to be here testify. I appreciate that. That is in the 
best tradition of oversight.
    I, also, believe you appreciate the fact that we are all 
united in wanting to battle terrorists. We also want to make 
sure all of us--you, me, and everybody else--that we preserve 
our own liberties in doing it.
    With that, we thank you.
    We stand adjourned.
    [Whereupon, at 1:48 p.m., the Committee was adjourned.]

                       SUBMISSIONS FOR THE RECORD

                        St. Mary's University School of Law
                                                   December 2, 2001

Hon. Senator Schumer
Hon. Senator Sessions

  Senate Hearings Regarding: Preserving our Freedoms While Defending 
                           Against Terrorism

    Dear Senators Schumer and Sessions,
    The purpose of this letter is to provide a short statement 
to express my general support for the use of military tribunals 
to try suspected war criminals/terrorists who have committed 
grave breaches of the laws of war. I have carefully read the 
military order signed by President Bush. Given the fact that a 
current state of international armed conflict exists between 
the United States of America and the Taliban government of 
Afghanistan, military tribunals are the appropriate forums to 
bring to justice suspected war criminals. Specifically, these 
individuals would be those non-U.S. citizens who participated 
in the unlawful attacks on the United States on September 11, 
2001, and any other non-U.S. citizens who have committed 
subsequent grave breaches of the laws of war--whether members 
of the Taliban or individuals who are harbored by the Taliban.
    Traditionally, the Executive Branch has employed the use of 
military tribunals/commissions to try suspected war criminals 
for actions that amounted to grave breaches of the laws of war 
during war. Since the close of the American Civil War in 1865, 
all individuals referred to such military trials have been non-
U.S. citizens and the Executive Branch has not only established 
the tribunals but also the rules associated-with the operation 
of said military trials. Apart from ``fairness'' issues 
associated with what rules the Executive Branch (through the 
Secretary of Defense) may ultimately establish for the modus 
operandi of the tribunals in the current situation, in my 
professional opinion, not only is the use of military tribunals 
to try non- citizens who have committed grave breaches of the 
laws of war a Constitutional exercise of power by the Executive 
Branch, but I believe that the Executive Branch has the legal 
authority to provide for the associated rules by which these 
tribunals will operate.
    1 am currently a Visiting Professor of Law at St. Mary's 
University School of Law in San Antonio, Teas where I teach a 
variety of topics to include National Security Law. I retired 
two years ago after serving for 20 years in the U.S. Army's 
Judge Advocate General's Corps. While in the military I worked 
in a variety of legal positions to include the Deputy of the 
International Law Division in the Pentagon, Senior Instructor 
in law of war issues at the Army's The Judge Advocate General's 
School, and the senior legal advisor for the U.S. Army Special 
Forces (Airborne)
    If I may be of any further help in this regard, please feel 
free to contact me at 210-431-2274, email 
[email protected].
            Very Respectfully Yours,
                                        Jeffrey F. Addicott
                                          Visiting Professor of Law

                                


     Statement of American Civil Liberties Union, Washington, D.C.

    The American Civil Liberties Union is a non-partisan, non-profit 
organization consisting of nearly 300,000 members dedicated to 
protecting the principles of freedom and equality set forth in the 
Constitution and in our civil rights laws.
    On September 11, thousands of Americans were brutally murdered in 
an audacious, coordinated attack. Our main office is only blocks away 
from the twin towers and our colleagues joined the terrified crowd 
rushing north from lower Manhattan. We recognize that the Department of 
Justice has a profound duty to prosecute the perpetrators and to try to 
protect the public against other attacks. We appreciate that this is a 
daunting task and that thousands of well-meaning people at the 
Department of Justice are working hard to accomplish this goal.
    The ACLU has supported many of the efforts now underway to promote 
security, such as recent initiatives to toughen airport security. 
However, we remain convinced that the government need not sacrifice 
civil liberties to protect the public. We can be both safe and free.
    This statement outlines how the conduct of the Department of 
Justice over the last ten weeks has undermined our most cherished 
rights, blunted the tools of accountability, and threatened the balance 
of power between the various branches of government.
    From the outset, the Attorney General and other spokespersons for 
the Department of Justice have signaled that they would not erode civil 
liberties in response to the September 11 attacks. Unfortunately, the 
actions of the Department of Justice and of other agencies acting in 
concert suggest otherwise. The Attorney General and the Administration 
have detained more than a thousand people without providing information 
to the media or public, written new regulations allowing for the 
recording of privileged conversations between attorneys and clients, 
proposed military tribunals without constitutional protections, and 
expanded the government's ability to withhold information from the 
public. We are deeply troubled by these actions. We hope that today's 
hearing is a step in the direction of Congress taking responsibility 
for its role in overseeing the Executive Branch and protecting our 
democratic government.
                           Military Tribunals
    ``We will not yield in our determination to protect the 
constitutional rights of individuals. Very frankly, those who attack 
the United States would attack the constitutional rights as well as the 
safety of individuals. We're going to do everything we can to harmonize 
the constitutional rights of individuals with every legal capacity we 
can muster to also protect the safety and security of individuals. It's 
with this in mind that we would evaluate any potential changes in the 
law.'' Attorney General Ashcroft, Press Briefing, September 18, 2001.
    On November 13, 2001, President Bush issued a ``Military Order'' 
providing for potentially indefinite detention of any non-citizen 
accused of terrorism, and permitting trial of such defendants in a 
military commission with no provision for judicial review.
    These tribunals will not be governed by the Uniform Code of 
Military Justice and do not contain the protections provided by the 
UCMJ. The order was issued without a formal declaration of war or any 
authorization by the Congress for the establishment of military 
tribunals. It circumvents the basic statutory requirement - at the 
heart of the compromise that was the USA Patriot Act -that non-citizens 
suspected of terrorism must be charged with a crime or immigration 
violation within seven days of being taken into custody, and that such 
detainees will have full access to the federal courts.
    The President's Military Order is unjustified and dangerous. It 
permits the United States criminal justice system to be swept aside 
merely on the President's finding that he has ``reason to believe'' 
that a noncitizen may be involved in terrorism. It makes no difference 
whether those charged are captured abroad on the field of battle or at 
home by federal or state police. It makes no difference whether the 
individual is a visitor or a long-term legal resident. Finally while 
the order applies in terms only to non-citizens, the precedents on 
which the President relies make no .such distinction, thereby 
permitting the order to be extended to cover United States citizens at 
the stroke of a pen.
    The President does not have unchecked war power by virtue of his 
authority as Commander-in-Chief. Rather, he shares these powers with 
Congress. ``The whole powers of war being, by the constitution of the 
United States, vested in congress, the acts of that body can alone be 
resorted to as our guides in this inquiry.'' Talbot v. Seeman, 5 U.S. 
(1 Cranch) 1, 28 (1801). This is true whether Congress authorizes 
``general hostilities'' by declaring war, or ``partial hostilities'' by 
authorizing the use of force in a military action short of war, as it 
has done here. Id.
    The Administration claims authority to establish military tribunals 
from the World War II-era precedent involving the trial of eight 
accused saboteurs, who landed on United States territory in 1942, 
shortly after the United States declared war on Germany. Their trial by 
military commission was upheld by the Supreme Court. Ex Parte Quirin, 
317 U.S. 1 (1942). But unlike President Bush, President Roosevelt 
relied on the authority Congress had given him by its formal 
declaration of war. Id at 25-26. Roosevelt also relied on specific 
statutory authority permitting trials of enemy spies by military 
commission.\1\ This authority has since been repealed.\2\
---------------------------------------------------------------------------
    \1\ Id. at 21-23 (charging violations of Articles 81 & 82 of the 
Articles of War).
    \2\ See Pub. L. No. 84-1028 (1956) (repealing Articles 81 & 82).
---------------------------------------------------------------------------
    The scope of the President's Order is breathtakingly broad. It 
applies to any individual whom the President determines he has ``reason 
to believe'' is (1) a member of A1 Qaeda, (2) is in any way involved in 
``acts of international terrorism''--a term which is not defined by the 
order--or (3) has ``knowingly harbored'' either of the above. If the 
term ``acts of international terrorism'' is defined by reference to any 
of several definitions of terrorism in the United States Code, as 
expanded under the USA Patriot Act, the universe of potential 
defendants could sweep in not only those who are directly involved in 
or knowingly support violent activity, but also many others on the 
basis of otherwise lawful, non-violent political activities and 
associations.
    The Attorney General has sought to justify the order on the grounds 
that it applies only to noncitizens, whom he erroneously (and 
alarmingly) claims not to have any constitutional rights. The Supreme 
Court made clear just this past summer that ``the Due Process Clause 
applies to all `persons' within the United States, including aliens, 
whether their presence here is lawful, unlawful, temporary, or 
permanent.'' Zadvvdas v. Davis, 121 S. Ct. 2491, 2500 (2001) (emphasis 
supplied).
    If United States courts can hear terrorism cases, and there has 
been no showing that they cannot, this severely undercuts the argument 
for military tribunals. Military tribunals, other than ordinary 
courtsmartial, are adopted as a last resort to ensure justice when the 
civil courts cannot function, not as a method of avoiding available 
forums for justice by undercutting basic constitutional rights. 
Military tribunals are used against ``certain classes of offense which 
in war would go unpunished in the absence of a provisional forum for 
the trial of the offenders.'' Madsen v. Kinsella, 343 U.S. 341, 348 n.8 
(1952) (emphasis supplied). Likewise, President Lincoln regarded 
military justice as permissible only if justified by military 
necessity, and refused demands to create military courts except where 
made necessary because of the inability of the regular courts to 
act.\3\
---------------------------------------------------------------------------
    \3\ Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The 
Origins and Limits of the Principle of Military Necessity, 92 Am. J. 
Int'1 Law 213, 223-25 (1998). Of course, Lincoln's views of what was 
``necessary'' conflicted with that of the Supreme Court in the Milligan 
case.
---------------------------------------------------------------------------
    The Military Order also fails to respect the careful limits that 
the Constitution has placed on the use of military courts even in times 
of declared war. They are not a substitute for civil justice generally, 
but may be applied only to ``unlawful enemy belligerents,'' a class 
which is far narrower than the universe of all persons who could be 
accused of terrorism crimes, particularly after the broadening of the 
definitions of terrorism in recent anti-terrorism legislation.
    Finally, and perhaps most importantly, the order utterly fails to 
account for the evolution of both international law and American 
constitutional law since World War II, when military commissions were 
last extensively used. It does not guarantee due process for the 
accused and could permit trials that our own government has said are 
fundamentally unfair and violate basic international standards when 
such trials are held in other countries. If Congress chooses to 
authorize military tribunals for a limited class of accused terrorist 
war criminals, it is imperative that such standards apply.
                               Detentions
    ``I'm deeply concerned about the civil liberties of all Americans. 
I'm especially concerned about the civil liberties of Arab Americans 
and Middle Eastern Americans who are patriotic citizens, who lament and 
regret this loss, perhaps as keenly or more keenly than any, and whose 
commitment to the strict enforcement and pursuit of these networks of 
terror that inflict this kind of injury is as strong as any.'' Attorney 
General Ashcroft remarks following his tour of the Pentagon, September 
19, 2001.
    The Department of Justice has launched what appears to be the most 
extensive program of preventative detention since the internment of 
over 100,000 Japanese and German-Americans during WWII. By the 
admission of the Department of Justice, over 1,200 people have been 
detained in connection with the September 11 attacks. According to 
media accounts of the detentions, approximately 1 percent or 2 percent 
of those detained in connection with the attacks are actually suspected 
of having any involvement at all. The rest are being held on the basis 
of unrelated immigration violations, minor crimes (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, virtually 
all of the detainees are Muslims or Arabs, and most are noncitizens.
    An extraordinary wall of silence surrounds this preventative 
detention campaign. The public, though it has a right to know, has not 
been informed of even the most basic information such as who has been 
detained, why, for how long, and where the detentions have occurred. 
The Department of Justice has refused to release specific information 
about the detainees.
    For these reasons, the ACLU wrote to the Attorney General asking 
him for information about the detainees. There was no response to that 
letter. We posed similar questions to the Director of the FBI, Robert 
Meuller, at two meetings during the month of October. We posed similar 
questions to Commissioner Ziglar of the Immigration and Naturalization 
Service on October 30. When all those requests for information failed, 
we filed, along with other organizations, a request under the Freedom 
of Information Act. Our requests have not been satisfactorily answered 
and we are considering further legal action. This wall of silence 
undermines public confidence in the investigation and raises questions 
about the fairness of the process and the safety of those detained.
    Persons detained on immigration charges are of particular concern 
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. In New York, the immigration 
detainees are reportedly given a list of pro bono attorneys in the 
area. However, there is no guarantee that the attorneys listed are 
qualified to represent persons under these circumstances, nor is there 
any guarantee the detained person will have success contacting an 
attorney. In some cases, detainees are allowed only one telephone call 
a week to find an attorney. Predictably, many of those who are 
questioned are questioned without an attorney.
    Another area of concern that is just coming to light is the fact 
that the Depart of Justice is planning on questioning 5000 men based 
solely on national origin. This constitutes blatant racial profiling, 
as some police departments have recognized.
            Eavesdropping on Attorney-Client Communications
    ``I want to assure you that in our effort to make sure that law 
enforcement can gain the intelligence that it needs in order to protect 
America, we are also mindful of our responsibility to protect the 
rights and privacy of Americans.'' General Ashcroft, Press Briefing 
with FBI Director Robert Mueller, September 17, 2001.
    To add to the concerns about the detainees, the Justice Department, 
unilaterally, without judicial oversight, and without meaningful 
standards, has issued rules that give it the power 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, implemented without the usual opportunity for prior public 
comment, is an unprecedented frontal assault on the attorney-client 
privilege and the right to counsel guaranteed by the Constitution. It 
is especially disturbing that these provisions for monitoring 
confidential attorney-client communications apply not only to convicted 
prisoners in the custody of the Bureau of Prisons, but to all persons 
in the custody of the Department of Justice, including pretrial 
detainees who have not yet been convicted of crime and are presumed 
innocent, as well as material witnesses and immigration detainees, who 
are not accused of any crime. 28 C.F.R. Sec. 501.3(f) (proposed 
amendment).
    The rule disregards long-standing Supreme Court precedent that 
protects the attorney-client .relationship. The Court has repeatedly 
emphasized the importance of the need for attorneys to communicate 
openly with their clients and has grounded this principle in both the 
long-standing attorney-client privilege as well as the Sixth Amendment 
right to adequate counsel. Regarding the attorney-client privilege, the 
Court wrote:
    The attorney-client privilege is the oldest of the privileges for 
confidential communications known to the common law. Its purpose is to 
encourage full and frank communication between attorneys and their 
clients and thereby promote broader public interests in the observance 
of law and administration of justice.
    Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682 
(1981). Indeed, so well established is this privilege, and so 
compelling the societal interest in unobstructed communication between 
clients and their attorneys, that the Supreme Court has held that the 
privilege survives even after the client's death. Swidler & Berlin v. 
United States, 118 S. Ct. 2081, 2088 (1998).
    Regarding the Sixth Amendment right to counsel the Court wrote: 
``[T]he 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.'' Weatherford v. Bursey, 429 
U.S. 545, 554 n. 4, 97 S. Ct. 837, 843 n. 4, 51 L.Ed.2d 30 (1977). It 
is noteworthy that the Court took this quotation from the Brief for 
United States as Amicus Curiae indicating that even the government 
recognizes the importance of private communications.
    The new rule gives the government the power to eavesdrop on a 
conversation between a detained person and his attorney any time the 
Attorney General finds that there is ``reasonable suspicion'' that a 
person in DOJ custody ``may'' use communications with attorneys or 
their agents ``to further or facilitate acts of terrorism.'' The 
Attorney General makes the determination as to what constitutes 
``reasonable suspicion'' without any provision for judicial review. The 
rule purports to provide safeguards such as ``notice'' that recording 
is taking place and the establishment of a ``privilege team'' within 
the Department of Justice that has the responsibility to review 
attorney client communications, then seek judicial approval before 
giving the information to the prosecuting attorney (unless the team 
alleges an imminent threat of terrorism, in which case judicial review 
is unnecessary).
    This ``privilege team'' is not an adequate solution to safeguard 
the attorney-client relationship. Under the proposed regulation, the 
determination of what constitutes ``properly privileged materials'' is 
made not by a neutral and disinterested judge, but unilaterally by the 
Justice Department itself. It will therefore be impossible for 
prisoners and their counsel to know in advance what portions of their 
intercepted communications the Justice Department will ultimately deem 
to be ``properly privileged materials.'' This uncertainty renders the 
privilege meaningless. ``[I]f the purpose of the attorney-client 
privilege is to be served, the attorney and client must be able to 
predict with some degree of certainty whether particular discussions 
will be protected. An uncertain privilege, or one which purports to be 
certain but results in widely varying applications. . ., is little 
better than no privilege at all.'' Upjohn, 449 U.S. at 393, 101 S. Ct. 
at 684.
    Although promulgated in the name of preventing terrorism, the DOJ 
rule goes beyond intercepting potential ``terrorist communications'' 
between a lawyer and client. The Attorney General can authorize 
eavesdropping on all of a detainee's attorney-client communications, 
even when the detained person has been convicted of no crime and is 
merely planning his defense with his attorney, or has been detained on 
immigration charges and is not accused of any crime at all.
    Lastly, this rule is unnecessary because current law already allows 
the government to seek a court order to record attorney client 
conversations if it has probable cause to believe that the attorney, 
with his client, is planning a serious crime such as terrorism.
    Like so many other post-September 11 proposals, this rule is an 
attempt to vest with the Department of Justice, instead of the courts, 
the power to determine when communications between a lawyer and her 
client should be stripped of their privileged status. It is 
particularly disturbing to note that the standard for the Attorney 
General to authorize eavesdropping on conversations between attorneys 
and clients, reasonable suspicion, is less stringent than the standard 
of proof necessary to obtain an ordinary search warrant or a wiretap 
warrant, which is probable cause.
                                Secrecy
    ``As we do in each and every law enforcement mission we undertake, 
we are conducting this effort with the total commitment to protect the 
rights and privacy of all Americans and the constitutional protections 
we hold dear.'' Attorney General Ashcroft, testifying before the House 
Judiciary Committee, September 24, 2001
    Americans have experienced the loss of privacy and the increase of 
secrecy take place with dizzying speed since September 11. Department 
of Justice regulations and Executive Orders have covered government 
operations with a shroud of secrecy.
          Freedom of Information Act and Presidential Records
    Attorney General John Ashcroft has issued a new statement of policy 
that encourages federal agencies to resist Freedom of Information Act 
(FOIA) requests whenever they have legal grounds to do so. The new 
statement supersedes a 1993 memorandum from Attorney General Janet 
Reno, which promoted disclosure of government information through the 
FOIA unless it was ``reasonably foreseeable that disclosure would be 
harmful.''
    The Ashcroft policy rejects this ``foreseeable harm'' standard. 
Instead, the Justice Department instructs agencies to withhold 
information whenever there is a ``sound legal basis'' for doing so. 
``When you carefully consider FOIA requests and decide to withhold 
records, in whole or in part,'' the Attorney General advised, ``you can 
be assured that the Department of Justice will defend your decisions 
unless they lack a sound legal basis. . . .'' It is noteworthy that 
Attorney General Ashcroft has committed to having DOJ defend the 
suppression of public access--rather than forcing the agency to provide 
its own defense if challenged in court.
    As with many of the Bush Administration's new restrictions on 
public information, the new policy is only peripherally related to the 
fight against terrorism. Rather, it appears to exploit current 
circumstances to advance a predisposition toward official secrecy. At 
the same time that the government is acquiring more legal authority to 
obtain private information about people it is also cutting back on 
sharing the information that it has obtained, making it more difficult 
for individuals to learn what kind of files their government is keeping 
on them.
    Another example of Administration secrecy is an Executive Order, 
issued November 1, that gives President Bush--as well as former 
presidents--the right to veto requests to open any presidential 
records. Even if a former president wants his records to be released, 
the executive order permits Bush to exercise executive privilege to 
prevent their release. The order also gives President Bush, and former 
presidents, an indefinite amount of time to ponder any requests. Bush's 
executive order openly violates the Presidential Records Act passed by 
Congress in 1978.
    In defending the executive order, the White House has argued that 
these new restrictions balance public access with ``national security 
concerns.'' This argument is specious given that national security 
documents are already shielded from public scrutiny.
    The Presidential Records Act was designed to shift power over 
presidential records to the government and ultimately to the citizens. 
This shifts the power back.
                           Role of Judiciary
    ``The Justice Department will never waiver in our defense of the 
Constitution nor relent our defense of civil rights.'' Attorney General 
Ashcroft, testifying before the Senate Judiciary Committee, September 
25, 2001.
    Instead of enlisting the help of the judiciary in the fight against 
terrorism, the Department seems intent on writing the judiciary out of 
the picture altogether. The President's executive order establishing 
military tribunals represents the ultimate form of court-stripping--
literally removing Article III courts from the picture with no 
provision for judicial review of the tribunal's actions. The Attorney 
General's lawyer-client eavesdropping order likewise writes judges out 
of their Constitutional role in deciding wheather there is probable 
cause to strip communications of their privileged status.
                               Conclusion
    The Justice Department's actions have antecedents stretching back 
to the earliest days of the Republic. The Alien and Sedition Acts of 
1798, criminal restrictions on speech during World War I, the 
internment of Japanese-Americans following the attack on Pearl Harbor, 
and the blacklists and domestic spying of the Cold War are all 
instances in which the government was granted (or assumed) summary 
powers in a moment of crisis, to the inevitable regret of later 
generations. The diminution of liberty that accompanied these episodes 
was later understood as an overreaction to frightening circumstances; 
each is now viewed as a shameful passage in the nation's history. After 
the immediate danger passed, it was recognized that the government had 
possessed ample powers to address the threats at hand; the new tools 
were unnecessary at best and dangerous at worst.
    Despite Attorney General Ashcroft's promises to uphold the 
Constitution and protect civil liberties, his actions belie his 
rhetoric. Our democracy is in real danger if any one branch of the 
government becomes too powerful. From establishing military tribunals 
without Congressional approval to expanding wiretapping authority while 
limiting judicial oversight, this Administration is demonstrating its 
disregard for the other two branches of government. The precarious 
balance of powers is becoming dangerously tilted toward an excess of 
Executive Branch power.
    We are heartened that the Senate is taking the lead in reclaiming 
the Congressional role of overseeing the new police powers and hope 
this will be an ongoing practice. While all of the country is focused 
on waging the war against terrorism we ask Congress to make sure that 
the war on terrorism does not become a war on democracy.

                                

Statement of Timothy H. Edgar, Legislative Counsel, Washington National 
        Office, American Civil Liberties Union, Washington, D.C.

    Senator Schumer and members of the Senate Judiciary Committee,
    My name is Timothy H. Edgar and I am legislative counsel for 
immigration and national security issues for the American Civil 
Liberties Union (ACLU). The ACLU is a non-profit, non-partisan 
organization with approximately 300,000 members, dedicated to 
preserving the freedoms, rights, and checks and balances outlined in 
our Constitution.
    The ACLU welcomes this opportunity to submit our views on President 
Bush's ``Military Order'' of November 13, 2001. We applaud your 
decision to exercise your oversight responsibilities with regard to the 
issue of military tribunals. We ask that you reclaim your proper 
constitutional role by determining for yourselves under what 
circumstances, if any, military tribunals should be used.
    The Military Order applies to some 20 million non-citizens in the 
United States, most of whom are legal residents, and any other non-
citizen anywhere else in the world, and permits indefinite detention 
without trial in violation of a key detention compromise made in the 
USA Patriot Act. It could, at the stroke of a pen, be expanded to 
include United States citizens.
    These military tribunals will not observe the same procedures as 
ordinary courts-martial under the Uniform Code of Military Justice and 
do not contain the protections available in the ordinary military 
justice system. They could, at the discretion of the Pentagon, permit 
secret trials, permit conviction or even execution on only a two-thirds 
vote of military officers, require less than proof beyond a reasonable 
doubt, deprive a defendant of counsel of their own choosing, and do 
away with the presumption of innocence.
    These fundamental rights not only ensure a fair trial of the 
accused, but the safety of the public. They help ensure that the 
government convicts the guilty--and only the guilty--thus making sure 
that the actual perpetrators of terrorism are not still at large 
because an innocent person stripped of constitutional protection was 
wrongly convicted.
    While the ACLU does not believe that the use of military tribunals 
is unconstitutional in all circumstances, the ACLU strongly opposes the 
Military Order because:

         Unlike President Roosevelt's order permitting trial of 
        spies and war criminals during World War II, the order was 
        issued without Congressional authorization, as required by the 
        Constitution, which gives Congress, not the President acting 
        alone, the power ``To define and punish. . .Offences against 
        the Law of Nations.''
         Regular courts have so far proven successful in 
        prosecuting terrorism cases. Military tribunals should be 
        authorized by Congress only if the regular courts cannot 
        function in particular cases.
         Military tribunals, if authorized by Congress, may 
        only be used constitutionally used against clearly identified 
        ``unlawful enemy belligerents,''--a class far narrower than all 
        persons accused of terrorism crimes--and have normally been 
        reserved for individuals captured in a zone of military 
        operations.
         Military tribunals, if authorized by Congress, must 
        comply with basic international and constitutional due process 
        standards, which are not provided for by the order.

    The ACLU strongly urges members of this Committee to consider 
carefully the breadth of the Military Order, and to reclaim its 
constitutional power by deciding for itself under what circumstances, 
if any, military tribunals should be authorized in terrorism cases and 
to ensure that basic due process protections are preserved.
    As it stands, the Military Order dramatically upsets the basic 
constitutional system of checks and balances by reserving to the 
President alone the power to indefinitely detain and order the military 
trial of a terrorism suspect. It contains the following basic 
constitutional flaws:
    First, the order exceeds the President's constitutional authority. 
It was issued without any authorization by the Congress to establish 
such tribunals and without a formal declaration of war. It circumvents 
the basic statutory requirement--at the heart of the compromise on 
detention in the USA Patriot Act \1\--that noncitizens suspected of 
terrorism must be charged with a crime or immigration violation within 
seven days of being taken into custody, and that such detainees will 
have full access to the federal courts.
---------------------------------------------------------------------------
    \1\ Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) 
Act of 2001, Pub. L. No. 107-56.
---------------------------------------------------------------------------
    Second, the breadth of the President's order raises serious 
constitutional concerns. It permits the United States criminal justice 
system to be swept aside merely on the President's finding that he has 
``reason to believe'' that a non-citizen may be involved in terrorism. 
It makes no difference whether those charged are captured abroad on the 
field of battle or at home by federal or state police. It makes no 
difference whether the individual is a visitor or a long-term legal 
resident. Finally while the order applies in terms only to non-
citizens, the precedents on which the President relies make no such 
distinction, permitting the order to be extended to cover United States 
citizens at the stroke of a pen.
    Third, the basic, fundamental rights guaranteed in United States 
courts and in ordinary courts-martial will not necessarily be afforded 
the defendants. The order purports to prevent review by any civilian 
court--including the Supreme Court of the United States--to ensure that 
even those rights ostensibly granted in the military proceeding are not 
violated. The rules and regulations that govern the tribunals are still 
being formulated. But, at the Pentagon's discretion, trials can be 
conducted in secret, and evidence can be introduced without the 
defendant being able to confront it. Only two thirds of the military 
officers on the tribunal's jury need find a defendant guilty, and the 
order provides for no meaningful appeal, even in cases involving the 
death penalty.
    Other basic rights remain unprotected. These rights seek to ensure 
that the government gets it right, punishing the guilty and permitting 
the innocent to be cleared.
    Fourth, there has been no showing that the order is necessary to 
advance justice or preserve national security. Civilian courts remain 
open and available to hear terrorism cases, and statutes and rules 
exist to safeguard classified information, ensure the safety of jurors 
and witnesses, and address other special concerns in terrorism trials. 
Military justice, while constitutional under certain circumstances 
which do not include all terrorism cases, is always a last resort.
    Finally, it is already plain that any verdict rendered by a secret 
military tribunal is likely to be regarded as illegitimate by a large 
portion of the world under international treaties to which the United 
States is a party. If Congress chooses to authorize the use of military 
tribunals in a narrow class of cases, such trials will still have to 
meet basic constitutional and international law standards. These 
standards have changed greatly since World War II and require basic due 
process for the accused. The procedures contemplated by the Military 
Order violate those standards.
   I. Congress Must Determine Whether and How To Establish Military 
                               Tribunals
    The President does not have unchecked war power by virtue of his 
authority as Commander-in-Chief. Rather, he shares these powers with 
Congress. In particular, the Constitution gives Congress, not the 
President, the power ``To declare War'' as well as the power ``To 
define and punish. . .Offences against the Law of Nations.'' Art. I, 
Sec. 8.
    Chief Justice John Marshall wrote plainly, ``The whole powers of 
war being, by the constitution of the United States, vested in 
congress, the acts of that body can alone be resorted to as our guides 
in this inquiry.'' Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801). 
This is true whether Congress authorizes ``general hostilities'' by 
declaring war, or ``partial hostilities'' by authorizing the use of 
force in an military action short of war, as it has done here. Id.
    The Administration claims authority to establish military tribunals 
from the World War II-era precedent involving the trial of eight 
accused saboteurs, who landed on United States territory in 1942, 
shortly after the United States declared war on Germany. Their trial by 
military commission was upheld by the Supreme Court. Ex Parte Ouirin, 
317 U.S. 1 (1942). But President Roosevelt relied on the authority 
Congress had given him by its formal declaration of war. Id at 25-26. 
This authority, the Supreme Court held, gave military commissions the 
sanction of Congress, a sanction which lasted ``from [war's] 
declaration until peace is declared.'' In re Yamashita, 327 U.S. 1, 11-
12 (1946). Roosevelt also relied on specific statutory authority 
permitting trials of enemy spies by military commission.\2\ This 
authority has since been repealed.\3\
---------------------------------------------------------------------------
    \2\ Ex Parte Quirin, 317 U.S. at 21-23 (charging violations of 
Articles 81 & 82 of the Articles of War).
    \3\ See Pub. L. No. 84-1028 (1956) (repealing Articles 81 & 82).
---------------------------------------------------------------------------
    By contrast, President Bush acted without a declaration of war and 
without any express Congressional authorization establishing military 
tribunals. Indeed, he acted without even consulting Congress. President 
Bush cites two Congressional enactments as authority for his order. 
Neither authorizes the establishment of military tribunals.
    First, President Bush relies on Congress's authorization of the use 
of military force against those ``nations, organizations or 
individuals'' involved in the attacks on the World Trade Center and the 
Pentagon. See Pub. L. No. 107-40 (2001). But that resolution makes no 
mention whatsoever of the use of military tribunals to try terrorists, 
nor was this discussed during debate on the resolution.\4\ Members of 
the House and Senate Judiciary Committees who voted for the resolution, 
of both parties, have expressed strong reservations about the 
President's unilateral decision, including Senator Arlen Specter (R-
PA), Chairman Patrick Leahy (D-VT), Representative Bob Barr (R-GA) and 
Ranking Member John Conyers (D-MI). Furthermore, the President's order 
applies to anyone accused of terrorism, not just those involved in the 
attacks of September 11. The order therefore exceeds the scope of the 
military force resolution in any event.
---------------------------------------------------------------------------
    \4\ See Cong. Rec. H5638-5683 (Sept. 14, 2001).
---------------------------------------------------------------------------
    Second, President Bush relies on sections 821 and 836 of Title 10 
of the United States Code. Neither section authorizes the President's 
action. Section 821 simply states that the extensive statutory 
provisions regarding courts-martial of members of the Armed Forces ``do 
not deprive'' other military tribunals, such as military commissions, 
of concurrent jurisdiction over offenders who ``by statute or by the 
law of war'' can be tried by such commissions. In other words, this 
section provides merely that if Congress authorized military tribunals, 
then they would not have to follow the same procedures as courts-
martial. Likewise, section 836 give the President power to establish 
procedures for military tribunals, which, again, would be relevant only 
if Congress chooses once again to authorize them.\5\
---------------------------------------------------------------------------
    \5\ It is true that the Quirin Court said that Congress had 
authorized trial of enemy spies not only under Articles 81 & 82 but 
also under the ``law of war,'' citing what is now 10 U.S.C. Sec. 821. 
But the Quirin Court had no occasion to consider the constitutionality 
of a unilateral Executive Branch decision to invoke this authority in 
the absence of a formal declaration of war or of any specific 
authorization of trial by military commission, and against a far 
broader class of defendants.
---------------------------------------------------------------------------
    Finally, the President did not merely act in the absence of 
Congressional authorization, but deliberately flouted Congress's will. 
The Military Order permits indefinite detention of non-citizens 
suspected of terrorism with no provision for recourse to the courts, a 
power which the Administration had sought, but was denied, by the 
Congress in the USA Patriot Act. That Act requires that non-citizens 
suspected of terrorism be charged with a crime or grounds of removal 
from the country within seven days of being detained. USA Patriot Act, 
Sec. 412, adding new INA Sec. 236A. It expressly permits judicial 
review of the detention by habeas corpus, the ancient and 
constitutionally-protected remedy against unlawful executive detention. 
Id. The President's action thus is directly contrary to Congress's own 
considered view of the subject.
    In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Supreme Court 
made clear that the President cannot, on his own, authorize detention 
without trial, saying only Congress had that power. While the justices 
were divided on when Congress could authorize military trials, even 
those who supported a broad view of the government's emergency 
detention powers agreed that when Congress put limits on those powers, 
the President was bound to respect them. See id. at 115; id. at 139-40 
(concurring opinion). Because Congress had expressly permitted 
detention without trial under certain circumstances--but not those 
involving Milligan's case--the President could not unilaterally expand 
those circumstances.
    Like the statute in Milligan, the USA Patriot Act expressly 
references the habeas corpus statute, 28 U.S.C. Sec. 2241, and permits 
detention without charge for seven days--well beyond the presumptively 
constitutional 48-hour period.--See County of Riverside v. McLaughlin, 
500 U.S. 44, 56 (1991). But Milligan an plainly holds that where 
Congress never ``contemplated that such person should be detained in 
custody beyond a certain fixed period, unless certain judicial 
proceedings. . .were commenced against him,'' id at 115, the President 
cannot evade those restrictions through the mechanism of a Military 
Order.
 II. The President's Order Sweeps Broadly, Stripping Away Basic Rights
    The scope of the Military Order is breathtakingly broad, applying 
far beyond a narrow class of Al Qaeda leaders in Afghanistan. It 
applies to any individual whom the President determines he has ``reason 
to believe'' is (1) a member of Al Qaeda, (2) is in any way involved in 
``acts of international terrorism''--a term which is not defined by the 
order--or (3) has ``knowingly harbored'' either of the above. It 
applies retroactively and contains no time limit, allowing for such 
trials not only of conduct years ago, but long after the current crisis 
is over. Any one of the more than 20 million non-citizens in the United 
States, most of whom are legal residents, and anyone else in the rest 
of the world, could potentially face trial in a military tribunal.
    If the term ``acts of international terrorism'' is defined by 
reference to any of several definitions of terrorism in the United 
States Code, the universe of potential defendants could sweep in not 
only those who are directly involved in or knowingly support violent 
activity, but also many others on the basis of otherwise lawful, 
nonviolent political activities and associations. For example, under 
the federal criminal code, material support of a terrorist 
organization, regardless of whether that support furthers terrorist 
activity, is defined as terrorism. 18 U.S.C. Sec. 233913. Supporting a 
school or day care center which is allegedly linked to a terrorist 
organization could thus be considered ``acts of international 
terrorism'' and subject a person to a military trial.
    While the order is limited to non-citizens, the Supreme Court 
reaffirmed just this summer that ``the Due Process Clause applies to 
all `persons' within the United States, including aliens, whether their 
presence here is lawful, unlawful, temporary, or permanent.'' Zadvydas 
v. Davis, 121 S. Ct. 2491, 2500 (2001) (emphasis supplied). Moreover, 
the constitutionality of trial by military commission is simply not 
based on the status of the offender as citizen or non-citizen. The 
order could easily be extended at the stroke of a pen to include United 
States citizens, who were tried before such commissions in the case of 
the saboteurs. In that case, the Supreme Court held that one saboteur's 
status as a United States citizen ``does not relieve him'' from trial 
before a military commission. Quirin, 317 U.S. at 38. ``[T]he offenders 
were outside the constitutional guaranty of trial by jury, not because 
they were aliens but only because they had violated the law of war by 
committing offenses constitutionally triable by military tribunal.'' 
Id. at 44 (emphasis supplied).\6\
---------------------------------------------------------------------------
    \6\ Likewise, supporters of the trial of accused terrorists fully 
expect (and desire) such trials to be used in domestic terrorism cases 
against United States citizens. Spencer J. Crona & Neal A. Richardson, 
Justice for War Criminals of Invisible Armies: A New Legal and Military 
Approach to Terrorism, 21 Okla. City U. L. Rev. 349, 372 (1996) 
(``[C]itizenship of the accused poses no obstacle.'')
---------------------------------------------------------------------------
    The Military Order contains only the barest of details concerning 
the conduct of military trials of terrorism suspects. The Order 
requires that prisoners be treated ``humanely'' and that they be given 
``a full and fair trial.'' Other than that, the procedures are left to 
be defined later, by the Secretary of Defense. Conspicuous by their 
absence are any of the basic guarantees that give life to the 
Constitution's demand that trials be fair. Indeed, there is an express 
Presidential ``finding'' that ``it is not practicable 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.'' This 
``finding'' must be taken into account in the Secretary of Defense's 
regulations regarding trial by military commission.
    The procedures that are defined do not inspire confidence. A 
defendant's right to confront the evidence against him or her is 
ominously curtailed by provisions prohibiting the disclosure of 
classified information--with no procedure for an adequate summary to 
take its place. The requirement of proof beyond a reasonable doubt is 
not guaranteed. The military tribunal is to try both facts and law, 
meaning that military officers--not Congress -will determine what 
constitutes a violation of the (otherwise undefined) ``law of war'' 
permitting execution or other punishment. Coerced confessions may be 
admissible, along with evidence obtained illegally. The only express 
requirement is that evidence must have ``probative value to a 
reasonable person.'' Defense counsel will be chosen by the United 
States military, not the accused.
    A two-thirds vote of military officers is required for conviction 
and sentence, which may include the death penalty. There is no direct 
appeal, except to the President himself or the Secretary of Defense as 
his designee the very officials who determine there is ``reason to 
believe'' a defendant is a terrorist or harbors terrorists. The order 
also provides that the accused ``shall not be privileged to seek any 
remedy or maintain any proceeding, directly or indirectly'' in any 
court, whether federal, state, foreign or international.\7\
---------------------------------------------------------------------------
    \7\ Significantly, similar court-stripping language in President 
Roosevelt's order was held not to oust the Supreme Court's authority to 
review the prisoners' claims on habeas corpus in Ex Parte Quinn. In 
addition, Ex Parte Milligan makes dear that only Congress, not the 
President acting alone, has the power to suspend habeas corpus. 
Furthermore, the Supreme Court has made clear just this summer, in INS 
v. St. Cyr, 121 S. Ct. 2271 (2001), that Congress must explicitly 
invoke the habeas corpus statute, 28 U.S.C. Sec. 2241, in order to 
modify the habeas corpus right, as it did in the USA Patriot Act. The 
order does not do this.
---------------------------------------------------------------------------
    Finally, the entire trial can take place in secret, without any 
accountability to Congress, the press or the American people. The order 
permits military commissions to sit ``at any time and any place'' and 
expressly authorizes ``closure'' of the proceedings to public scrutiny. 
If those rights that the Secretary of Defense chooses to confer on the 
accused are violated, the order not only makes no provision for the 
courts to stop it, but Congress, the press and public--key guarantors 
of our free society--may not even know about it.
 III. There Has Been No Showing That the Regular Courts Are Inadequate 
                        to Hear Terrorism Cases
    United States courts have proven they can successfully try 
terrorism cases. This severely undercuts the argument for military 
tribunals. Military tribunals, other than ordinary courts-martial, are 
adopted as a last resort to ensure justice when the civil courts cannot 
function, not as a method of avoiding available forums for justice by 
undercutting basic constitutional rights.
    The Supreme Court has said that military tribunals are used against 
``certain classes of offense which in war would go unpunished in the 
absence of a provisional forum for the trial of the offenders.'' Madsen 
v. Kinsella 343 U.S. 341, 348 n.8 (1952) (emphasis supplied). Even 
President Lincoln regarded military justice as permissible only if 
justified by military necessity, and refused demands to create military 
courts except where made necessary because of the inability of the 
regular courts to act.\8\
---------------------------------------------------------------------------
    \8\ Burrus M. Carnahan, Lincoln, Lieber and the Laws of War The 
Origins and Limits of the Principle of Military Necessity, 92 Am. J. 
Int'I Law 213, 22325 (1998). Of course, Lincoln's views of what was 
``necessary' conflicted with that of the Supreme Court in the Milligan 
case.
---------------------------------------------------------------------------
    Today, the regular criminal courts remain open to hear terrorism 
cases. Special statutes and rules exist to protect national security 
and to address other challenges of terrorism cases, such as preserving 
the safety of jurors and witnesses.\9\
---------------------------------------------------------------------------
    \9\ See, e.g., 18 U.S.C. Sec. 3521.
---------------------------------------------------------------------------
    The Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3, 
was enacted precisely to avoid forcing the government to disclose 
essential intelligence information during discovery or forgo 
prosecution of terrorists, spies or other dangerous criminals. It 
successfully accommodates the government's need for secrecy with the 
fundamental imperative that an individual accused of crime must be able 
to confront the evidence against him and to challenge that evidence. It 
requires the government to provide the accused with an unclassifed 
summary of any classified evidence, which must be approved by a federal 
district judge as adequate to satisfy the standards of the statute and 
of the Constitution.
    Likewise, in prior terrorism cases, and other sensitive cases 
involving organized crime or international drug trafficking, the 
government has used special procedures to safeguard the identity of 
jurors and to ensure their safety. The federal witness protection 
program exists to protect witnesses from potential reprisal from 
terrorists or other criminals.
    Perhaps most importantly, the government has successfully 
prosecuted terrorists in the past. These include the trials of the 
original World Trade Center bombing conspirators, trial of conspirators 
in a foiled plot involving New York City tunnels, and the trial of 
those responsible for the bombings of United States embassies in 
Africa. Many of Al Qaeda's leaders are already under indictment, and 
are simply awaiting capture.
    While those who support military tribunals argue that none of these 
prosecutions actually succeeded in preventing the attacks of September 
11, that is not because previous defendants were acquitted. In fact, 
all such defendants have been convicted and sentenced to lengthy prison 
terms or death. The government cannot prevent attacks if it does not 
catch the perpetrators before the conspiracy is carried out, and the 
availability of a military court will do nothing to solve that problem.
    Some who support military tribunals have argued that regular 
criminal trials simply take too long and cost too much. In fact, 
however, there is no reason to believe that a fair military trial would 
necessarily take less time than a regular criminal trial. Trials of 
United States military personnel under the Uniform Code of Military 
Justice closely resemble many of the procedures used in criminal 
cases.\10\ Nor would there be any appreciable cost savings, since the 
lion's share of the cost of trials is the cost of investigation. As one 
commentator notes, ``Put simply, the crime must be solved''--and that 
is true regardless of which forum will try the perpetrators.\11\
---------------------------------------------------------------------------
    \10\ This is one reason why supporters of military justice for 
accused terrorists contemplate a very different process. See Crona & 
Richardson, supra, at 375 (complaining that ``[t]he UCMJ uses a form of 
due process almost as elaborate as the civilian criminal justice 
system.) But neither international law nor domestic constitutional law 
permit the sacrifice of basic due process, even where military justice 
is permitted.
    \11\ Daniel M. Filler, Values We Can Afford-Protecting 
Constitutional Rights in an Age of Terrorism: A Response to Crona and 
Richardson, 21 Okla. City U. L. Rev. 409, 413 (1996).
---------------------------------------------------------------------------
    Punishment in civilian court can be both swift and severe. The 
Speedy Trial Act ensures that a criminal trial will not be subject to 
unreasonable delay. If the government shows accused terrorists pose a 
danger to the community, the Bail Reform Act permits pretrial 
detention, resulting in immediate incarceration of the accused. 
Finally, if the death penalty is sought, limits on death penalty 
appeals enacted in previous antiterrorism legislation have greatly 
``streamlined'' the death penalty appeals process, even at the expense 
of full and fair review of death sentences.\12\
---------------------------------------------------------------------------
    \12\ For example, the Anti-Terrorism and Effective Death Penalty 
Act of 1996 amended 28 U.S.C. Sec. 2255 to place a one-year time limit 
on habeas corpus challenges to federal convictions.
---------------------------------------------------------------------------
    Put simply, Congress has enacted very serious penalties for 
terrorism crimes, up to and including the death penalty. Terrorists 
have been tried, convicted, sentenced to death, and executed in the 
regular criminal justice system. Existing statutes protect the 
government's interests in national security, in protecting witnesses 
and jurors, in securing the immediate detention of terrorist suspects, 
and other concerns said to require military tribunals. If the 
Administration needs additional safeguards in the regular criminal 
courts, it can ask Congress for them. And if the Administration 
identifies a limited class of cases which require the use of military 
tribunals, it can ask Congress to authorize them.
    Trial by a military tribunal will not necessarily result in swifter 
or surer punishment of the guilty--but, under the procedures permitted 
by the order, it does risk punishment of the innocent. Constitutional 
guarantees protect not only the rights of the innocent, but also the 
public safety because they help ensure that the government seeks 
conviction of the right people and if they are convicted, that they are 
actually guilty of the crimes charged.
    For example, the right to assistance of counsel of one's own 
choosing helps ensure that a person is adequately represented and that 
the adversarial system at the basis of our criminal justice system can 
work to arrive at the truth. The requirement of a finding of guilt 
beyond a reasonable doubt also helps ensure that the innocent are not 
convicted. The right to see the evidence the government offers against 
the accused ensures an opportunity to refute, explain or put into 
context otherwise incriminating evidence. The right to a trial by a 
jury of one's peers, presided over by an impartial judge, also helps 
ensure a process designed to arrive at the truth, not at a pre-ordained 
conclusion.
    Without enforcement of these rights, the government may focus on 
the wrong people, and even obtain convictions of innocent people, while 
the terrorists go free to engage in more acts of terror.
IV. The Constitution Permits Military Tribunals Only in Certain Narrow 
                             Circumstances
    The Military Order also fails to respect the careful limits that 
the Constitution has placed on the use of military tribunals even when 
authorized by Congress in time of war. If Congress chooses to authorize 
military tribunals, it must respect these limits.
    Military tribunals are not a substitute for criminal courts 
generally, but may be applied only to ``unlawful enemy belligerents''--
a class which is far narrower than the universe of all persons who 
could be accused of terrorism crimes, particularly after the broadening 
of the definitions of terrorism in recent anti-terrorism legislation. 
For sound policy reasons, they have most often been reserved for those 
captured abroad in a zone of military operations.
    What are those ``offenses constitutionally triable by military 
tribunal,'' Quirin, 317 U.S. at 44, as the Supreme Court determined was 
permissible in the trial of World War II saboteurs? While the line may 
be difficult to draw, it clearly does not extend to all offenses that 
could be labeled terrorism. We know this because of the 1866 case the 
Supreme Court expressly chose not to overrule in Quirin--Ex Parte 
Milligan. That case establishes beyond all doubt that the Constitution 
does not permit all terrorism offenses to be tried in military 
tribunals.
    Lamdin P. Milligan was accused of very serious offenses, including 
``[violation of the laws or war,'' arising from his alleged 
participation in a conspiracy organized by a group called the ``Order 
of American Knights'' or ``Sons of Liberty.'' 71 U.S. (4 Wall.) at 5. 
The organization planned to seize munitions, liberate prisoners of war 
and generally to conspire in aid of the Confederacy. In short, Milligan 
was accused of being a terrorist. Yet his conviction was overturned by 
a unanimous Supreme Court. The Court found that Milligan could not be 
tried by a military tribunal because he was a citizen of a state which 
had not been in rebellion against the United States, had never been in 
the military, of either side, and the regular courts were available to 
hear any criminal case against him. Id. at 121.
    When the Supreme Court faced with the question whether Milligan 
permitted the trial of the saboteurs in Quirin, it was only with 
difficulty that the Court distinguished that precedent. It could not be 
distinguished on the grounds that Milligan involved a citizen, since 
one of the saboteurs was a United States citizen. Instead, the Court 
said that the saboteurs' case, unlike Mill, involved admitted agents of 
a hostile government ``who during time of war pass surreptitiously from 
enemy territory into our own, discarding their uniforms upon entry, for 
the commission of hostile acts involving destruction of life or 
property. . . .'' 317 U.S. at 35.
    Whether today's terrorists are more like Lamdin Milligan, or the 
World War II saboteurs, the Military Order applies far more broadly 
than the narrow class of enemy belligerents who may constitutionally be 
tried in a military commission, if such trials were authorized by 
Congress with appropriate safeguards. The Constitution plainly does not 
allow this.
    Finally, it should be noted that Quirin remains an exceptional case 
for other reasons as well, as we now know from historians. It was a 
rare case in which the government departed from its usual practice of 
using military tribunals only against captured enemy soldiers in a zone 
of military operations. Many of these revelations undercut any argument 
for relying on it today.\13\
---------------------------------------------------------------------------
    \13\ See Daniel J. Danelski, The Saboteurs' Case, 1 Journal of 
Supreme Court History 61 (1996).
---------------------------------------------------------------------------
    When the World War II saboteurs were caught, following the 
defection of one of their number, there was an immediate public outcry. 
J. Edgar Hoover, then Director of the Federal Bureau of Investigation, 
was worried that the ease with which the saboteurs had penetrated the 
American coastlines and moved freely about the country would damage 
public morale--not to mention his own image. In public, he made it 
sound as though the FBI had solved the case on its own, without the 
extensive help of the defector. Indeed, other saboteurs may have 
intended to defect as well. A military trial would give the government 
greater secrecy--but this was needed not to protect national security, 
but to protect Hoover's image.
    Lacking today's extensive criminal laws against terrorism, the 
government was concerned that any offense for which the saboteurs would 
be tried would result in only a minor prison sentence. The government 
knew it was on shaky ground in using military tribunals where the 
criminal courts were open, under Milligan. Nevertheless, President 
Roosevelt made clear he intended to see the saboteurs punished, even at 
the expense of the Constitution. ``I want one thing clearly understood, 
Francis,'' he told Attorney General Francis Biddle. ``I won't hand them 
over to any United States marshal armed with a writ of habeas corpus. 
Understand?'' \14\ President Roosevelt need not have been so worried. 
The Supreme Court quickly affirmed the prisoners' death sentences. The 
Court announced it would issue a full opinion later. The sentences were 
carried out.
---------------------------------------------------------------------------
    \14\ Id. at 68. A habeas corpus challenge was to be the prisoners' 
only real appeal. While the military commission permitted review by the 
President, it seemed unlikely such review would be meaningful, as the 
President was mainly concerned with the most fitting method of 
execution.
---------------------------------------------------------------------------
    Upon further reflection, however, the justices found the case was 
not nearly as simple as they thought. Milligan was not so easily 
distinguished, and the justices found themselves disagreeing on basic 
points, some of which could have changed the result if they had been 
considered at the time. Only after Justice Frankfurter issued a 
remarkable, and unusual, patriotic plea for unanimity did the justices 
fall in line.\15\
---------------------------------------------------------------------------
    \15\ Id. at 77-78.
---------------------------------------------------------------------------
    Justice Frankfurter later remarked that Quirin ``is not a happy 
precedent.'' Justice Douglas said, ``Our experience [in Quirin] 
indicated to all of us that it is extremely undesirable to announce a 
decision on the merits without an opinion accompanying it. Because once 
the search for the grounds. . .is made, sometimes those grounds 
crumble.'' \16\ The Supreme Court's record on civil liberties in World 
War II does not inspire confidence. It was, after all, only two short 
years between Ex Parte Quirin's ``bending'' of constitutional rules and 
the most shameful Supreme Court decision of the century, which upheld 
the internment of Japanese Americans. See Korematsu v. United States, 
323 U.S. 214 (1944).
---------------------------------------------------------------------------
    \16\ Id. at 80.
---------------------------------------------------------------------------
    Under the Constitution, military tribunals can be used only in 
narrow circumstances. They must be authorized by Congress, and may be 
used only against clearly identified ``unlawful enemy belligerents.'' 
They have ordinarily been reserved for those captured in a zone of 
military operations, and their use in other situations has been 
questionable. The Military Order simply does not respect these basic 
constitutional limits on military tribunals.
     V. Military Tribunals Must Comport with Basic Due Process and 
                        International Standards
    Finally, and perhaps most importantly, the order utterly fails to 
account for the evolution of both international law and American 
constitutional law since World War II, when military commissions were 
last extensively used. It does not guarantee due process for the 
accused and could permit trials that our own government has said are 
fundamentally unfair and violate basic international standards. If 
Congress chooses to authorize military tribunals for a limited class of 
accused terrorist war criminals, it is imperative that such standards 
apply.
    In 1942, international human rights law was in its infancy. Today, 
a host of international instruments, including treaties to which the 
United States is a party, provide guarantees of fundamental due process 
to anyone imprisoned by the state. For example, Article 9 of the 
International Covenant on Civil and Political Rights (ICCPR), which the 
United States ratified in 1992, guarantees liberty and protects ``the 
security of the person'' from arbitrary arrest and detention. Article 
14 requires the accused to be given a fair trial.
    The procedures that the Military Order contemplates, however, fall 
far short of these standards, as the United States has recognized in 
its insistence on compliance with human rights around the world. For 
example, as noted in a letter to President Bush from Human Rights 
Watch, dated November 15, 2001, the United States government

         successfully insisted that a military terrorism trial 
        in Peru against United States citizen Lori Berenson be set 
        aside in favor of a trial which the State Department demanded 
        be held ``in open civilian court with full rights of legal 
        defense, in accordance with international judicial norms,''
         condemned Nigeria for convicting and executing 
        environmental activist Ken Aiwa and eight others after a trial 
        before a special military court,
         condemned Egypt, in the State Department's most recent 
        human rights report, for using military tribunals against 
        suspected terrorists, noting that ``military courts do not 
        ensure civilian defendants' due process before an independent 
        tribunal,''
         expressed serious concern about closed tribunals in 
        Russia, where foreigners, including Americans, were convicted 
        of espionage.

    Already, these concerns have complicated efforts to extradite 
suspected terrorists from Spain and other European countries.\17\
---------------------------------------------------------------------------
    \17\ See T.R. Reid, Europeans Reluctant to Send Terror Suspects to 
U.S., Washington Post, Nov. 29, 2001, at A23.
---------------------------------------------------------------------------
    Likewise, in 1942 the Supreme Court had yet to apply most of the 
guarantees of the Bill of Rights to trials in the state courts, viewing 
these as rights peculiar to the federal system. Over the next half 
century, however, many of the Bill of Rights' guarantees were extended 
to trials in state court. These constitutional protections did not 
directly apply to state courts but instead were seen as fundamental to 
a fair system of justice.
    For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the 
Supreme Court found that the right to assistance of counsel, protected 
by the Sixth Amendment, was indeed a fundamental right that applied to 
the states under the Due Process Clause of the Fourteenth Amendment. In 
so ruling, the Court overruled an earlier case, Betts v. Brady, 316 
U.S. 455 (1942) which had ruled the right was not fundamental to a fair 
trial. But the Military Order greatly restricts the right to counsel, 
who will be a military officer chosen by the Department of Defense. 
These Supreme Court decisions paralleled statutory reforms of the 
Uniform Code of Military Justice, which now uses judges, not lay 
military officers, and permits review by a civilian court and by the 
United States Supreme Court.
    So today, it is not sufficient for the Supreme Court to say, as it 
did in 1942, that the ``Fifth and Sixth Amendments did not restrict 
whatever authority was conferred by the Constitution to try offenses 
against the law of war by military commission. . . .'' Quirin, 317 U.S. 
at 45. Under current law, even if trials are not held in a federal 
court, they must observe basic constitutional rights. If military 
tribunals were authorized by Congress today, they would have to observe 
basic constitutional norms.
                             VI. Conclusion
    The Administration's proposal to substitute military tribunals for 
the regular justice system poses a profound challenge to this nation's 
ability to preserve civil liberty as it combats terrorism in the wake 
of the heinous attacks on the World Trade Center and Pentagon on 
September 11, 2001. The trial of crimes in our constitutional system 
includes a host of procedural protections vital to ensuring the 
government gets it right, punishing the guilty--and only the guilty. 
Some of these rights were affected by Congress's passage of the USA 
Patriot Act. The President's Military Order has the effect of rendering 
the compromises on detention of noncitizens made in the USA Patriot Act 
meaningless in those cases to which it applies.
    According to its supporters, the President's Military Order does 
not simply limit constitutional rights in terrorism trials. It 
abolishes them altogether. The procedures to be followed under the 
President's Order simply will not be a matter for the Constitution, but 
rather for the pleasure of the Executive. And if the Executive chooses 
to violate even those rights it decides to confer, the order purports 
to preclude review at any level of federal judiciary, including the 
Supreme Court of the United States.
    We are told, however, that military courts will only be used 
against accused terrorists. Attorney General Ashcroft informs us that, 
once accused of terrorism by our government, such persons ``are not 
entitled to and do not deserve the protections of the American 
Constitution.'' \18\
---------------------------------------------------------------------------
    \18\ Naftali Bendavid, Critics Attack Tribunal Proposal, Chicago 
Tribune, Nov. 15, 2001.
---------------------------------------------------------------------------
    It is worth repeating the Supreme Court's firm rejection of a 
similar argument well over a century ago:

        ``The Constitution of the United States is a law for rulers and 
        people, equally in war and in peace, and covers with the shield 
        of its protection all classes of men, at all times, and under 
        all circumstances. No doctrine, involving more pernicious 
        consequences, was ever invented by the wit of man than that any 
        of its provisions can be suspended during any of the great 
        exigencies of government.'' \19\

    \19\ Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).
---------------------------------------------------------------------------
    The Supreme Court made clear the stark choice that would face our 
nation if military rule was not expanded beyond the narrow 
circumstances permitted by the Constitution, but was permitted without 
Congressional authorization and where the civil courts were open, and 
their process, unobstructed. Then, the Court observed: ``Civil liberty 
and this kind of martial law cannot endure together; the antagonism is 
irreconcilable; and, in the conflict, one or the other must perish.'' 
\20\
---------------------------------------------------------------------------
    \20\ 
---------------------------------------------------------------------------
    20 Id. at 124-25.
    But does the advent of modern terrorism ``change everything''? The 
strength of our democracy has lied in our ability to resist such 
arguments. In Duncan v. Kahanamoku, 327 U.S. 304 (1946), the Supreme 
Court faced a similar argument when it considered the continued 
constitutionality of martial law in Hawaii, during World War 11, after 
the immediate threat of invasion had passed. The government insisted 
that the invention of nuclear weapons required new thinking for a new 
kind of war that would not permit the luxury of rights enshrined in an 
Eighteenth Century constitution.
    The Court rejected it. Justice Murphy said, ``That excuse is no 
less unworthy of our traditions when used in this day of atomic warfare 
or at a future time when some other type of warfare may be devised.'' 
Id. at 330-31 (Murphy, J., concurring).
    That future time may now be upon us, but the excuse is still 
unworthy of our Constitution. Trial by military tribunal represents the 
gravest possible abrogation of civil liberty. Such use must be 
carefully limited to the most pressing circumstances for civil 
government to survive. Congress must act to ensure that these limits, 
and its authority, remain intact.

                                

                                                   December 4, 2001

The Hon. Patrick J. Leahy
433 Russell Senate Office Bldg.
United States Senate
Washington, DC 20510

The Hon. Orrin G. Hatch
Ranking Minority Member
United States Senate
104 Hart Building
Washington, DC 20510

    Dear Senator Leahy and Hatch:

    Enclosed is a Statement of Position of the American College of 
Trial Lawyers respectfully opposing the interim rule of the Department 
of Justice authorizing the monitoring by the Government of 
communications between prison inmates and their lawyers.
    The College consist of more than 5,000 invited members from the 
United States and Canada. to qualify for invitation to membership, our 
members must have a minimum of fifteen years of active trial experience 
and have been committed to the highest ethical standards. The College 
draws its members from the plaintiffs' bar and the defense bar, and 
includes, as well, prosecutors and criminal defense lawyers. The 
College is a professional organization dedicated to improving the 
administration of justice.
    The interim rule is of profound concern to the College for the 
reasons set forth in the Statement of Position. I respectfully request 
that this letter and the Statement of Position be made part of the 
record of the important hearing being held on this matter by the Senate 
Judiciary Committee.
            Very Truly yours,
                                           Stuart D. Shanor
                                                          President

                                

             Statement of American College of Trial Lawyers

                                Position
    The American College of Trial Lawyers (``the College '') 
respectfully but firmly opposes the U.S. Attorney General's recent 
promulgation of an interim rule authorizing the Government, without 
prior court approval, to monitor communications between persons 
confined in prison and their lawyers.
    The College, a professional organization consisting of more than 
five thousand lawyers invited to membership after a minimum of fifteen 
years trial experience, is dedicated to improving the administration of 
justice. The College recognizes the need for the Department of Justice 
to take action to combat terrorism. But those actions must not violate 
constitutional and other important legal rights related to the 
attorney-client privilege. They must not violate the constitutional 
right of those imprisoned to the effective assistance of counsel.
    The attorney-client privilege is essential to our adversary system 
of justice. As Chief Justice Rehnquist has stated for the Supreme 
Court, ``[Its purpose is to encourage full and frank communication 
between attorneys and their clients and thereby promote broader 
interests in the observance of law and administration of justice.''
    The Government's unilateral usurpation of authority to monitor 
confidential communications between persons it has imprisoned and their 
lawyers will destroy this ``full and frank'' communication. Under the 
rule, the lawyer and client are to be told their communications are 
being monitored. Knowing that the Government is listening to what is 
said, clients will not confide in their lawyers. Lawyers will not 
provide confidential advice to their clients. Indeed, their ability to 
do so will be undermined because their clients will not have given them 
the ``full and frank'' communication necessary for a lawyer to provide 
sound advice. This will defeat the purpose of the attorney-client 
privilege which, as Chief Justice Rehnquist has also explained, 
``exists to protect not only the giving of professional advice to those 
who can act on it but also the giving of information to the lawyer to 
enable him to give sound and informed advice.''
    Further, this intrusion is unnecessary. Existing law allows for 
monitoring attorney-client communications under procedures which pass 
constitutional muster. First, the Government must have ``probable 
cause'' or ``reasonable grounds'' to establish that a lawyer is 
assisting or conspiring with his client and/or others to engage in 
terrorist activity, or is being used unknowingly for such a purpose. 
Second, the Government under existing law can then obtain authority 
from a court to wiretap or intercept these communications and, indeed, 
may do so without advising the lawyer and client that their 
communications are being intercepted. Importantly, however, prior court 
approval is a constitutional and statutory requirement. The Government 
cannot, in contrast to the interim rule, act unilaterally.
    ``Probable cause'' or ``reasonable grounds'' to establish the 
likelihood of ongoing criminal conduct is also a constitutional and 
statutory requirement for such an intrusion. The far more lenient 
standard of ``reasonable suspicion'' permitted by the rule to monitor 
attorney-client communications does not satisfy this constitutional 
requirement, even if sanctioned by a judge. Certainly, that standard is 
unacceptable when the Government acts unilaterally, without court 
approval.
    To any claim that national security interests argue against 
permitting prior approval by any member of the federal judiciary, the 
Foreign Intelligence Surveillance Act (``FISH ''), if amended, could 
provide a statutory mechanism for requiring and obtaining prior 
judicial approval based on probable or good cause.
    It is no defense or justification, as the Department of Justice 
claims, that this rule will apply to only a few ``inmates.'' One is one 
too many. If allowed to apply to a few, whoever they may be, the 
lenient standard of ``reasonable suspicion'' to be used by the 
Government can readily have expanded application to many.
    Nor is it a defense or justification that a ``firewalled'' or 
separate Department of Justice ``privilege team'' will monitor the 
attorney-client communications and disclose their contents to 
investigators and prosecutors only with court approval. As explained 
above, the known existence of the monitoring already will have 
``chilled'' the ``full and frank'' communication that the Supreme Court 
has held the privilege is designed ``to encourage.'' There will be 
virtually nothing of substance to monitor, but the inmate will have 
been denied effective assistance of counsel. ``[T]he purpose of the 
privilege. . . to encourage clients to make full disclosure to their 
attorneys','' as the Supreme Court has said, will have been completely 
frustrated.
    For more than sixty-five years, the United States Supreme Court has 
held that communications between lawyer and client intended to further 
a crime or fraud are not protected by the attorney-client privilege. We 
agree with this holding. But this determination is, under Supreme Court 
law, to be made by a court, not unilaterally by the Executive Branch, 
an adversary to and custodian of an inmate seeking legal advice from a 
lawyer.
    The American College of Trial Lawyers respectfully urges the 
Government to rescind the interim rule and not to promulgate it as a 
final rule.

                                

 Statement of the American Council of Chief Defenders, Washington, D.C.

    The American Council of Chief Defenders (ACCD) is gravely concerned 
by the U.S. Department of Justice Rule permitting monitoring of 
attorney-client communications.
    The new DOJ rule is not necessary to advance legitimate law 
enforcement efforts to secure public safety. Procedures and standards 
already exist which give law enforcement the ability to intercept 
communications under circumstances in which there is probable cause to 
believe a crime is taking, or is about to take place.
    The lack of a requirement for judicial intervention strips the 
criminal justice process of one of the important ``checks and 
balances'' which ensure a fair system. Requiring a judge to authorize 
monitoring of such communications is a critical means by which our 
system protects against harmful and unnecessary law enforcement 
mistakes or excesses. Judicial review is a critical component of the 
right to a fair process that is the foundation upon which our justice 
system is built.
    Monitoring attorney-client communications will deny individuals the 
right to a fair trial. The American public views access to counsel as 
an essential ingredient of a fair trial. The DOJ rule eradicates that 
right by precluding counsel, who are ethically bound to protect the 
privilege, from conversing with individuals whom they represent. Just 
as the doctor-patient privilege aids doctors in making accurate 
diagnoses, the attorney-client privilege is an essential aspect of the 
attorney's function. Without honest communication and trust, attorneys 
are not equipped to advise clients, to test the sufficiency of the 
government's evidence, or to fight a wrongful conviction.
    Communication with the chief executives of the Nation's indigent 
defense agencies would be a more effective way to address legitimate 
security concerns in attorney-client communications. To the extent that 
a concern underlying the rule is that attorneys may unknowingly assist 
individuals who are plotting terrorist acts, law enforcement officials 
and chief defenders should work together to identify the ways in which 
terrorists might seek to manipulate attorneys or use them as conduits 
for coded messages, and to train attorneys in appropriate preventive 
measures. To the extent that the concern is that attorneys may 
knowingly assist or support acts of mass murder, the suggestion is an 
affront to the public defense professionals whose careers are dedicated 
preserving the fundamental democratic values enshrined in our system of 
justice.
          * * * * *
    The ACCD is a leadership council of the National Legal Aid and 
Defender Association, consisting of chief executives of indigent 
defense systems throughout the United States and its territories. It is 
dedicated to securing fair justice systems by advocating for sound 
public policies and ensuring quality legal representation for people 
who are facing a loss of liberty or accused of a crime who cannot 
afford to hire attorneys.

                                

                        Statement of Principles

           Presidential Order Authorizing Military Tribunals
    On November 13, President Bush signed a military order establishing 
a process of military tribunals for trials of any person other than an 
American citizen suspected of a terrorist-related offense, whether 
apprehended in the U.S. or abroad. The order violates the 
constitutional separation of powers, since the creation of military 
commissions has not been authorized by the Congress and is outside the 
President's constitutional powers.
    The order strips away a variety of fundamental checks and balances 
on governmental power and the reliability and integrity of criminal 
judgments - safeguards which are present in other available 
adjudicative processes, whether the U.S. criminal justice system, 
military courts martial, or international courts. The procedures 
possible under the President's order create an unacceptable risk of 
miscarriage of justice and conviction and execution of the innocent. By 
its example, the order undermines the rule of law worldwide, and 
invites reciprocal treatment of U.S. nationals by hostile nations 
utilizing secret trials, a single entity as prosecutor, judge and jury, 
no judicial review, and summary executions.
    The trial of individuals alleged to have played a major role in the 
attacks of September 11, at a time when the United States is engaged in 
open military conflict, presents legitimate security challenges, which 
must be accommodated in the narrowest possible manner consistent with 
well established safeguards guaranteed under the U.S. Constitution and 
international law, including:

        Access to counsel of one's choosing, and a guarantee of the 
        effective assistance of qualified counsel for defendants who 
        cannot afford retained counsel, encompassing confidential 
        communication with counsel, funding for necessary and 
        reasonable expert and investigative services, and adequate time 
        to prepare and present a defense;
        An independent judicial officer presiding;
        The right to be informed promptly of the charges, and to be 
        released promptly if not charged or otherwise lawfully detained 
        under established federal or international law;
        The right to cross-examine witnesses, and to review and 
        meaningfully test the reliability as well as the probative 
        value of the government's evidence, subject to existing 
        safeguards for specific sensitive information under CIPA or 
        similar procedures, as well as a guarantee of access to 
        exculpatory evidence;
        Rights against self-incrimination and coerced confessions;
        A presumption of innocence;
        Proof beyond a reasonable doubt;
        Unanimous judgment as to both conviction and sentencing; and
        Judicial review.

    Individuals apprehended in this country must, of course, continue 
to be tried in civilian courts. If Congress elects to authorize 
military commissions or to use an existing international tribunal for 
the trial of terrorism suspects apprehended abroad, the undersigned 
organizations respectfully recommend that the above principles of due 
process, at a minimum, be accorded.
            Subscribed to by:
                National Legal Aid and Defender Association
                        American Council of Chief Defenders
            Brennan Center for Justice at NYU School of Law
                                 First Amendment Foundation
          National Committee Against Repressive Legislation
                     World Organization Against Torture USA
         The Multiracial Activist and Abolitionist Examiner
           National Association of Criminal Defense Lawyers

                                

 Statement of American Federation of Labor and Congress of Industrial 
           Organizations, Executive Council, Washington, D.C.

    AFL-CIO delegates convene in the wake of the most shocking and 
destructive acts of terrorism ever perpetrated on our soil. Our 
convention is graced by an exhibit portraying the names of 631 union 
members among the dead since Sept. 11 and images of the heroes of that 
day.
    The AFL-CIO is firmly committed to bringing the perpetrators of 
these crimes and their patrons to justice, and supports the 
government's military campaign to defend our nation, and all civilized 
society, in a global coalition to hunt and eliminate mass murderers, 
their networks and their sanctuaries. Nothing less is warranted amidst 
grave and unprecedented circumstances where international cabals intent 
on sowing death, disruption and dread have access to sophisticated 
technology and ruthlessly exploit the inherent vulnerabilities of a 
democratic and open society.
    But there is another front in America's struggle to protect and 
extend freedom and security: home. And here, our love of liberty and of 
country compels us also to speak forcefully in opposition to a range of 
measures the administration has taken, or reportedly is contemplating, 
that threaten civil liberties, breach constitutional rights and, with 
tragic irony, hand our adversaries a partial victory by degrading the 
essential guarantees upon which our nation is founded.
    In October, at the administration's prodding and at the height of 
post-Sept. 11 anxiety, Congress enacted the so-called ``USA PATRIOT 
Act,'' which affords an array of new and powerful toots to law 
enforcement applicable to circumstances well beyond ``terrorism'' by 
any definition. This law permits the indefinite detention of non-
citizens on minor visa violations; expands government discretion to 
engage in covert telephone and Internet surveillance; permanently 
expands its authority to conduct searches; enables the departments of 
justice and State to brand groups as terrorist organizations and deport 
their noncitizen members; grants the Federal Bureau of Investigation 
broad access to business records about individuals; blurs a vital line 
between foreign intelligence operations and domestic law enforcement 
functions by enabling the Central Intelligence Agency to gather 
information from other agencies about American citizens and residents; 
and imposes excessive background check requirements on commercial 
trot!: drivers licensed to transport hazardous materials, applies vague 
standards and denies full protection for the driver's due process 
rights.
    Vigilance to ensure that the Executive Branch applies these 
sobering new powers responsibly presents a significant challenge to law 
enforcement authorities, congressional oversight bodies, the judiciary 
and our citizens. But even before the administration implemented these 
new prerogatives, it launched a series of additional initiatives by 
executive fiat, outside of the legislative process, and without even 
congressional consultation or prior public notice and discussion. Each 
of these initiatives is disturbing in itself; collectively, they emit 
the air of authoritarianism.
    The Justice Department has changed rules affecting federal inmates 
(dozens and non-citizens alike) by asserting authority to eavesdrop on 
attorney-client conversations upon a ``reasonable suspicion'' that an 
inmate may use such contacts to facilitate acts of ``violence or 
terrorism.'' An inmate and his or her lawyer would be informed that the 
attorney-client privilege does not protect such conversations or their 
other contacts ``not related to the seeking or providing of legal 
advice.''
    This directive converts the attorney-client privilege from an 
essential protection in our system of justice that governs the scope of 
disclosures during actual litigation under judicial supervision into a 
sword justifying government interference with the heart of the 
attorney-client relationship. Ostensible safeguards of notice and 
limited disclosure will not temper this new rule's profound chilling 
effect and its intrusive reach well beyond the detection of potential 
terrorism.
    Meanwhile, since Sept. 11, the government has detained over 1,000 
persons with little and arbitrary public disclosure of their 
identities, the charges against them and the purposes of this dragnet 
We do know that this selective enforcement of minor offenses and 
immigration status is largely predicated on ethnicity, a disturbing 
echo of the disgraceful treatment of American citizens of Japanese 
descent during World War II. In America, we do not ``round up the usual 
suspects,'' yet the government acknowledges that it believes that at 
most a handful of those detained have any connection with the Sept, 11 
atrocities.
    The president also has issued an executive order decreeing that 
non-citizens he selects who are arrested in connection with 
``terrorism'' within or outside our borders will be tried in non-public 
trials, before special new military tribunals, barred from access to 
courts, denied review of evidence used against them at the prosecutor's 
discretion, subject to evidence that does not meet even civil court 
requirements and exposed to conviction and sentence-including capital 
punishment--upon the decision of two-thirds of a panel composed of 
military officers who are subordinate to the government officials who 
select the defendants and oversee the prosecutors, and who alone can 
entertain an appeal.
    This order betrays an unwarranted lack of faith in our nation's 
criminal justice system, which has ably and constitutionally served as 
the venue for trials of the 1993 World Trade Center bombers, Timothy 
McVeigh and Manuel Noriega, among many others of the same ilk. And the 
new tribunals fall well short of the standards of openness and due 
process that have governed the International Court of Justice at The 
Hague, the Nuremberg trials following World War 11 and even our usual, 
longstanding system of military justice. And the new order could reach 
not merely the captured leadership of recognized terrorist groups, but 
any non-citizen deemed connected with ``terrorism,'' undefined; 20 
million non-citizens dwell in our country today. Loose applications of 
such terms have provided purported justification for violations of the 
civil liberties of champions of workers throughout the world, from 
Martin Luther King Jr. to Nelson Mandela.
    As our Convention begins, we also team that the Justice Department 
may-again unilaterally-modify longstanding restrictions on FBI 
surveillance of political and religious organizations that were imposed 
25 years ago to end decades of violations of citizens' First and Fourth 
Amendment rights, and to prevent their recurrence. Such domestic spying 
could eventually sweep in unions and citizens organizations and 
threaten independent political and social activism. Even if existing 
policies merit review, there must be a deliberative process with 
congressional involvement and a full public airing and debate before 
any new policy is adopted.
    Our history teaches that external and internal threats can prompt 
repression of citizens and abuses of power. We must show other 
countries that we can and will treat their nationals as we have always, 
rightly, insisted that they treat ours. And we cannot accept excessive 
secrecy and unaccountable power that deny Americans the ability to 
question the authority and evaluate the conduct of their government.
    America will prevail, and impress our adversaries with the futility 
of their plans, only if we uphold our traditional liberties and 
standards of justice with the same decisiveness and vigor that we bring 
to our military efforts. The AFL-CIO urges the Administration to 
reconsider and relinquish hastily adopted policies that debase our 
constitutional traditions.

                                

Statement of the American Immigration Lawyers Association, Washington, 
                                  D.C.

                     Our Liberty and Freedoms today
    As we take steps to increase national security and mourn the loss 
of the thousands killed in the recent terrorist attacks, the American 
Immigration Lawyers Association (AILA) is deeply concerned about recent 
government actions. These actions threaten our fundamental 
Constitutional guarantees and protections that set our nation apart 
from others. While every step must be taken to protect the American 
public from further terrorist acts, those steps must not trample on the 
Constitution and on those basic rights and protections which make 
American democracy so unique and precious and gives us needed 
legitimacy within our country and in the world.
    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, 2001. However, the arrest and continued detention of more 
than 1000 individuals in the wake of September 11 concerns us. Reliable 
reports of violations of due process failure to provide access to 
counsel, constant delays in hearings, failure to release in a timely 
fashion individuals for whom an immigration judge has set bond, 
hearings conducted in secret in the name of ``protecting the public 
interest'' for individuals who are only charged with technical 
immigration violations- are heightened by the failure of the Department 
of Justice to provide the most basic shred of information about the 
detainees. Who is being detained? What is the nature of the charges? 
How many detainees remain unrepresented by counsel? These and other 
questions remain unanswered two months after the initial arrests and 
despite repeated inquiries and the filing of formal FOIA requests. This 
silence is unacceptable.
    The announcement by President Bush that military tribunals will be 
convened to try suspected non-citizen terrorists, both in the U.S. and 
abroad, is alarming and unprecedented in the absence of a Congressional 
declaration of war and, with no input from Congress, appears to be an 
end run around the legislative branch of government. The democratic 
institutions of a democracy have time and again proven themselves 
strong enough to prosecute and bring to justice drug traffickers, mafia 
kingpins, terrorists like Timothy McVeigh and those responsible for the 
1993 World Trade Center and the Kenyan and Tanzanian Embassy bombings. 
Our institutions are strong enough to bring to justice any terrorists 
responsible for the heinous crimes of September 11. The American people 
have demonstrated in the weeks since September 11 that they have ample 
courage to serve on juries and to prosecute and judge such acts. In the 
international arena, the U.S. has long supported international 
tribunals to try war criminals such as Slobodan Milosovic and opposed 
the use of secret military tribunals as they have been used by 
repressive regimes around the world. We should lead by example and 
strengthen international institutions, not undermine them.
    The interim regulations the Administration subsequently issued 
which provide for eavesdropping without warrant on protected attorney-
client communication, and which also provide for automatic stays of 
immigration judge bond decisions, violate fundamental protections 
provided by the Constitution of the separation of powers, the 
independence of the judiciary and the right to counsel.
    Finally, the announcement this week that 5,000 individuals have 
been identified for questioning (males between the ages of 18 and 33 
who entered the U.S. after January 1, 2000 and who came from countries 
where terrorist acts were planned or committed) also is cause for 
concern. While this questioning may assist the Department of Justice to 
compile information critical to the current investigation, every care 
must be taken to assure that the questioning is voluntary, that 
individuals be afforded the opportunity to have counsel present if they 
desire, and that no aura of suspicion is cast which would instill fear 
and distrust within the very individuals and communities whose 
cooperation the Department of Justice seeks in its investigation. An 
over-wide net runs the danger of amounting to discriminatory profiling. 
Care must be taken to assure that the proper balance is maintained 
between legitimate law enforcement and overzealous sweeping fishing 
expeditions.
    In the next months and years, our nation will face many challenges. 
We must stand vigilant and not compromise our freedoms. Doing so will 
damage our liberty here and our credibility in the world.

                                

       Statement of Amnesty International USA, New York, New York

     Human Rights Organization Urges Revocation of Executive Order 
                    Permitting Military Commissions
    (WASHINGTON, DC)--Amnesty International, the world's largest 
grassroots human rights organization, today urged Congressional leaders 
to preserve human rights and civil rights protections as law 
enforcement officials seek the perpetrators and accomplices of the 
September 11 attacks. The organization also announced that it has 
mobilized its worldwide membership to oppose the use of military 
commissions in response to the attacks in New York and Washington.
    ``Indefinite detention of alleged suspects, ethnic and racial 
profiling, and secret military trials are not acceptable law 
enforcement responses, even to events as reprehensible as the September 
11 attacks,'' Curt Goering, Amnesty International USA's Senior Deputy 
Executive Director, said as the Senate Judiciary Committee convened 
hearings on the Bush Administration's law enforcement efforts. 
``Eroding fundamental human rights principles at home will damage US 
efforts to exert leadership abroad, perhaps irrevocably.''
    In an Urgent Action appeal sent Tuesday, Amnesty International 
asked its members worldwide to contact President Bush, Secretary of 
State Colin Powell and Attorney General John Ashcroft urging that the 
executive order permitting military commissions be revoked. The appeal 
noted that use of such commissions would undermine international 
cooperative efforts, citing Spain's refusal to extradite suspects to 
face military trials.
    In a 26-page memo to Attorney General Ashcroft, also sent Tuesday, 
Amnesty International detailed a range of concerns about recent actions 
taken by the Department of Justice. ``Amnesty International recognizes 
the government's obligation to take all necessary measures to 
investigate the crimes of September 11 and protect national security,'' 
wrote Susan Lee, Program Director, Americas, in a letter accompanying 
the memo. ``However, we share the concerns expressed by many 
individuals and organizations that the government may be violating its 
equal obligation to ensure that any such measures include safeguards 
for the protection of the fundamental rights of those arrested or 
detained.''
    In addition to objecting to the proposal to use military 
commissions, Amnesty International raised a number of other concerns in 
the memo, including the duration of detention, detainees' adequate 
access to legal counsel and family, and the conditions of detention. 
Lack of information on those detained prompted the human rights 
organization to join in filing a Freedom of Information Act request 
with the Department of Justice to learn the names, locations and 
charges against the detainees.
    The organization made a series of recommendations, including:

        Make public information on the total number of people arrested 
        to date in connection with the September 11 investigation: 
        dates and place of arrest; the number still detained and the 
        reasons for the detention; length of time in detention; place 
        of detention; and data on the race or ethnicity of those 
        detained. Provide such information regularly on future arrests.
        Ensure that no one is held incommunicado while in custody.
        Publicly reaffirm the US government's unequivocal opposition to 
        the use of torture, suggesting the US government enact a law 
        making torture a federal crime.
        Ensure that INS standards for the treatment of immigration 
        detainees and asylum seekers, introduced into some facilities 
        earlier this year, are extended to all facilities housing such 
        detainees and are strictly monitored and followed.

    ``It is precisely during challenging times such as these that 
governments must be especially scrupulous in their adherence to human 
rights principles,'' said Goering. ``Otherwise, the very values worthy 
of protection themselves become casualties, diminishing all of 
society.''

                                

    Statement of William F. Schulz, USA Executive Director, Amnesty 
                    International, Washington, D.C.

    Amnesty International urges President Bush to rescind the executive 
order creating secret military commissions to try suspects in the 
September 11 attacks.
    The trial of those responsible for these heinous attacks will 
represent one of the most important events in international justice 
since the Nuremberg Tribunal following World War II. Secret trials 
conducted with secret evidence may help sate the appetite of some who 
want revenge, but they will not guarantee justice. If our goal is 
ensuring justice and preventing similar attacks in the future--then we 
should do everything in our power to hold fair public trials that 
present the case against the accused to the victims, to the American 
people, and to the world.
    Resorting to secret military tribunals that lack appropriate due 
process guarantees will only encourage others to question the 
legitimacy of the trials and the competency of the US justice system.
    Justice can best be served through public trials in civilian courts 
that adhere to international standards and give the victims of these 
heinous crimes the opportunity to witness the proceedings and the 
results.
                        UNITED STATES OF AMERICA
memorandum to the us attorney general--amnesty international's concerns 
                        relating to the post 11
                        september investigations
                              introduction
    More than 1,100 people, mainly non-US nationals, have been taken 
into custody in the USA during the investigations into the attacks on 
the World Trade Center and the Pentagon on 11 September 2001. Many of 
them have reportedly been held under new government powers to detain 
people for questioning for an extended period before being presented to 
a court. Very little public information has been made available to date 
regarding the details of these detentions and information on some cases 
has been sealed through court orders. It is unclear at present exactly 
how many people remain in custody, although it is believed that 
hundreds may still be detained. Sources have indicated that only a 
small number of these individuals are being held as ``material 
witnesses'' and it remains unclear as to whether any-one has yet been 
charged in connection with the 11 September attacks. Many of the 
detainees are reported to be held on federal, state or local criminal 
charges unrelated to the attacks, or are detained because of alleged 
immigration violations.
    Amnesty International recognizes the government's obligation to 
take all necessary measures to investigate the crimes of 11 September 
and protect national security. However, the organization is concerned 
that the government may be violating its equal obligation to ensure 
that any such measures include safeguards for the protection of the 
fundamental rights of those arrested or detained. Under international 
law, even in states of emergencies, certain basic rights may not be 
suspended, including the right of every person not to be subjected to 
arbitrary detention, torture or other cruel, inhuman or degrading 
treatment or discrimination on the grounds of race, colour, sex, 
language, religion or social origin. Other rights which may not be 
suspended include the right of everyone charged with a criminal offence 
to be presumed innocent until proved guilty according to law, and 
certain fair trial rights under international humanitarian law, which 
must be respected even in times of armed conflict.\1\
---------------------------------------------------------------------------
    \1\ Set out in the Geneva Conventions of 1949
---------------------------------------------------------------------------
    Over 300 ``terrorist'' suspects are reported to have been detained 
in other countries since 11 September at the behest of the US 
authorities. Arnnesty International is urging the US Government to 
promote and protect international human rights standards in the 
investigation of these cases too. It is further calling on the US 
government to fully respect all relevant safeguards if it intends to 
seek the extradition of any of these individuals. In addition, the 
organization reiterates its opposition to the proposed military 
tribunals to try foreign nationals accused of links to ``international 
terrorism''.
    The USA is a state party to various international human rights 
treaties--including the International Covenant on Civil and Political 
Rights (ICCPR) and the Convention against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment (Convention against 
Torture) whose fundamental principles Amnesty International fears are 
threatened in the context of the investigations into the 11 September 
attacks. Yet it is precisely during challenging times such as these 
that governments must be scrupulous in their adherence to such 
principles. To do otherwise undermines rather than reinforces the 
search for justice.
             1. safeguards relating to arrest or detention
    International standards provide that all,persons who are arrested 
or detained (with or without charge) should be informed immediately of 
the reasons for the detention and notified of their rights, including 
the right of prompt access to and assistance of a lawyer; the right to 
communicate and receive visits; the right to inform family members of 
the detention and place of confinement; and the right of foreign 
nationals to contact their embassy or an international organization. 
Anyone arrested or detained who does not adequately understand or speak 
the language used by the authorities, has the right to be notified in a 
language they understand what their rights are and how to exercise them 
and to be provided with an interpreter if necessary.\2\ These rights 
are important safeguards against arbitrary deprivation of liberty and 
incommunicado detention. Incommunicado detention has been condemned by 
the US Government and non and intergovernmental organizations as a 
serious human rights violation that often leads to other abuses, 
including torture.
---------------------------------------------------------------------------
    \2\ These rights are contained, infer alia, under article 9 of the 
International Covenant on Civil and Political Rights (ICCPR), ratified 
by the USA in 1992; the Body of Principles for the Protection of All 
Persons under Any Form of Detention or Imprisonment (Body of 
Principles), adopted by consensus by the United Nations (UN) General 
Assembly in 1988; and the Basic Principles on the Role of Lawyers, 
adopted by the Eighth UN Congress on the Prevention of Crime and 
Treatment of Offenders.
---------------------------------------------------------------------------
    Although US law requires that a detainee be informed of the right 
to counsel immediately upon arrest, Amnesty International is concerned 
that some of those arrested after 11 September were denied prompt 
access to counsel and were unable to inform their families of their 
whereabouts. Some detainees are reported to have been denied access to 
counsel for up to a week--far longer than is considered acceptable 
under international standards, even in emergencies.\3\ In some cases, 
families have reported difficulty finding out where, or even if, their 
relatives have been detained.
---------------------------------------------------------------------------
    \3\ The Human Rights Committee ( which monitors states' compliance 
with the ICCPR) has stressed that ``all persons arrested must have 
immediate access to counsel''. The Body of Principles states that 
access to a lawyer may be restricted in the most exceptional 
circumstances ``to be specified by law or lawful regulations, when it 
is considered indispensable by a judicial or other authority to 
maintain security or good order'' but that even here, this should not 
be delayed beyond a few days. The UN Special Rapporteur on Torture has 
recommended that, as torture is most frequently practised during 
incommunicado detention ``. . .incommunicado detention should be made 
illegal and persons held incommunicado should be released without 
delay. Legal provisions should ensure that detainees should be given 
access to legal counsel within 24 hours of detention.''
---------------------------------------------------------------------------
    Detainees (some of whom were later released) have also reported 
being held for days without being informed why they were detained and 
without being questioned, contrary to international standards.\4\ 
Several detainees report having been effectively cut off from the 
outside world for two weeks while their families searched for them. 
Others have reportedly been held for weeks after being cleared by the 
FBI of any criminal violations. Amnesty International has spoken to 
several lawyers who say they had difficulty in finding out why their 
clients were being held. The lack of information and secrecy 
surrounding detentions may prevent people from being able effectively 
to challenge their detention another important right under 
international law.\5\
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    \4\ Article 9(2) of the ICCPR states that ``Anyone who is arrested 
shall be informed, at the time of arrest, of the reasons for his arrest 
and shall be promptly informed of any charges against him.''
    \5\ Article 9(4) of the ICCPR states: ``Anyone who is deprived of 
his liberty by arrest or detention shall be entitled to take 
proceedings before a court, in order that that court may decide without 
delay on the lawfulness of the detention and order his release if the 
detention is unlawful.''
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    Frequent transfers of detainees to different places of detention, 
sometimes to different US states, can also serve to perpetuate the 
secrecy surrounding detention and undermine the detainee's ability to 
receive assistance of legal counsel.\6\ International standards provide 
that detained persons have the right not only to notify their family 
promptly of their arrest but also of any transfer and the place to 
which they have been transferred.\7\
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    \6\ For example, the attorney retained in the case of three 
immigrants from Mauritania picked up in Ohio on immigration violations 
in late September still had not met with them two weeks later as they 
had been moved several times to jails in Indiana, Kentucky, Tennessee 
and Louisiana.
    \7\ Principle 16(1) of the Body of Principles states ``Promptly 
after arrest and on each transfer from one place of detention or 
imprisonment to another, a detained or imprisoned person shall be 
entitled to notify or to require the competent authority to notify 
members of his family or other appropriate persons of his choice of 
arrest, detention or imprisonment or of the transfer and of the place 
where he is kept in custody.''
---------------------------------------------------------------------------
    Concern has also been raised that foreign nationals may not have 
been given an opportunity in all cases to seek the assistance of their 
embassy or a country representative on arrest, as provided under the 
Vienna Convention on Consular Relations, which the USA ratified without 
reservations in 1969. Although they may choose not to exercise this 
right, all foreign nationals must be informed of their right to contact 
their consulate immediately upon arrest. It is the responsibility of 
the Department of Justice to ensure this right is protected whether or 
not the detainee is in federal or local custody and, where requested, 
to arrange without delay for contacting their consulate.
         2. rights of immigration detainees and asylum seekers
    Concern has been expressed that people held in the post- 11 
September sweeps for immigration violations who in the USA have no 
right to government-assigned legal counsel--may be subject to summary 
removal proceedings without having the opportunity to defend themselves 
or obtain legal advice. A number of those arrested are reported to have 
agreed to voluntary departure soon after being taken into custody and 
it is unclear whether all had an opportunity to be legally represented.
    The Immigration and Naturalization Service (INS) has issued 
guidelines which provide that INS detainees should be immediately 
informed of organizations able to give free legal assistance. However, 
Amnesty International is informed that these standards are not legally 
enforceable or consistently applied, particularly where such detainees 
are held in local jails. Immigration lawyers' groups say they fear many 
may be in detention without an effective opportunity to contact a 
lawyer or other representative. Some detainees arrested since 11 
September report not being allowed to make phone calls for several 
days, or being moved to different locations, without being able to 
inform their families or lawyers.
    Some of those detained may be asylum seekers, seeking protection 
from refoulement to a country where they are at risk of human rights 
violations, including torture. The USA has enacted legislation, in 
keeping with its obligations under the Convention against Torture (see 
below), which states that ``[i]t shall be the policy of the United 
States not to expel, extradite, or otherwise effect the involuntary 
return of any person to a country in which there are substantial 
grounds for believing the person would be in danger of being subjected 
to torture''.\8\
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    \8\ United States Policy with Respect to the Involuntary Return of 
Persons in Danger of Subjection to Torture, adopted in October 1998, as 
part of the Foreign Affairs Reform and Restructuring Act.
---------------------------------------------------------------------------
    Amnesty International urges that all asylum seekers have an 
opportunity to have their claims assessed in a fair and satisfactory 
procedure, as required under the 1951 Convention relating to the Status 
of Refugees (UN Refugee Convention). International standards provide 
that, as a general rule, asylum seekers should not be detained; those 
who are detained because of criminal violations or on security grounds 
should still have a full and fair hearing of their claim, and be able 
to see and challenge any evidence presented against them. No-one should 
be prevented from lodging an asylum application. Any determination to 
exclude an individual from refugee status on grounds recognized under 
the 1951 Convention should only be made after full consideration of the 
claim in a fair and satisfactory procedure.\9\ A preliminary 
consideration that someone might fall under the provisions of the 
exclusion clauses should not hinder the full examination of the claim 
for asylum. No one should be forcibly removed without having had their 
individual need for protection assessed, with all the safeguards 
provided in human rights (including the right to be informed of the 
evidence, to rebut the evidence and to appeal against a decision to 
exclude).
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    \9\ Under the Refugee Convention, ``Acts of terrorism'' may be 
recognized grounds for exclusion from refugee status when they 
constitute crimes against peace, war crimes, crimes against humanity, 
serious non-political crimes outside the country of refuge, or acts 
contrary to the purposes and principles of the United Nations (Article 
IF of the Convention).
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    Amnesty International also urges that the Department of Justice 
ensure that new, detailed INS standards for immigration detainees and 
asylum seekers introduced into some facilities earlier this year--which 
include better provision for attorney contact, contact with consular 
officials and visitation--are extended to all facilities, and 
rigorously applied.\10\
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    \10\ The standards were introduced in January 2001 at 18 INS-owned 
and operated detention centres and facilities operated under contract 
by Corrections Corporation of America and Wackenhut. They were due to 
extend to some of the largest jails housing INS detainees under 
contract in June 2001. However, there are many smaller facilities and 
local jails which continue to house INS detainees where the standards 
(which are due to be introduced gradually) are yet to be applied.
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    3. powers to detain non-nationals under new ``anti-terrorist'' 
                      legislation: the patriot act
(1). Right to be brought promptly before a judicial or other authority
    Amnesty International understands that many of the post-11 
September detentions took place under an emergency directive issued by 
the Attorney General on 19 September. This extended the time a non-
national could be held in Immigration or Naturalization Service (INS) 
custody without charge from 24 hours to 48 hours ``or to an additional 
reasonable time, if necessary, under an emergency, or in other 
extraordinary circumstances.''
    This has since been superceded by the USA Patriot Act, ``anti-
terrorist'' legislation passed by Congress which became law on 26 
October 2001.\11\ Section 236(A) (a) of the Act provides for the 
mandatory detention of a non-US national based on the Attorney 
General's certification that he has ``reasonable grounds to believe'' 
that the individual is a ``terrorist'', or supporter of ``terrorist 
activity'' or ``is engaged in any other activity that endangers the 
national security of the United States.'' \12\ A person detained under 
this provision may be held for up to seven days without any charges, 
after which removal proceedings or charges must be instituted, or the 
detainee released.
---------------------------------------------------------------------------
    \11\ Uniting and Strengthening America by Providing Appropriate 
Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act.
    \12\ Definitions of terrorism for which non-nationals can be 
detained or deported under the Act are extremely broad and include 
membership of, or any ``material support'' for, any foreign or domestic 
organization designated as a ``terrorist organization'' by the 
Secretary of State or any group that publicly endorses acts of 
terrorism; and membership or support for (including soliciting funds) 
any group not designated as ``terrorist'' but deemed to support 
terrorism in some way. In the latter cases, the onus on the non-
national to prove that his or her assistance was not intended to 
further terrorism.
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    While seven day detention without judicial supervision is not as 
open-ended as the emergency directive issued on 19 September, Amnesty 
International believes that it may be contrary to international 
standards which provide that all arrested or detained persons should be 
brought promptly before a judge or judicial authority.\13\ Although no 
specific time limits are expressly contained under international 
standards, seven-day detention before someone is initially brought 
before a court exceeds what has been considered acceptable in cases 
reviewed by the Human Rights Committee as well as the European Court of 
Human Rights.\14\
---------------------------------------------------------------------------
    \13\ Principle I 1(I) of the Body of Principles states: ``A person 
shall not be kept in detention without being given an effective 
opportunity to be heard promptly by a judicial or other authority.'' 
This applies to all detainees, whether or not held on a criminal 
charge. Article 9(3) of the ICCPR states: ``Anyone arrested or detained 
on a criminal charge shall be brought promptly before a judge or other 
officer authorized by law to exercise judicial power and shall be 
entitled to trial within a reasonable time or release..''
    \14\ Members of the Human Rights Committee have questioned whether 
detention for 48 hours without being brought before a judge is not 
unreasonably long (Report of the HRC, vol 1 (A/45/40), 1990, para 333, 
Federal Republic of Germany); in a death penalty case, the Committee 
ruled that a delay of one week from the time of arrest before the 
detainee was brought before a judge was incompatible with Article 9(3) 
of the ICCPR: ``anyone arrested or detained in a criminal charge shall 
be brought promptly before a judge or other officer authorized by law 
to exercise judicial power...'' (McLawrence v Jamaica, UN Doc. CCPR/
Ci60/D/702/1996). the European Court of Human Rights has ruled in a UK 
case that detaining a person for four days and six hours before 
bringing him before a judge was not prompt access (Brogan et al, United 
Kingdom, 29 November 1988, 145b Ser. A33 at 62).
---------------------------------------------------------------------------
    Judicial review is an essential safeguard against arbitrary arrest 
or detention and to protect the well-being of those detained. Article 
9(1) of the ICCPR provides that ``Everyone has the right to liberty and 
security of the person. No one shall be subjected to arbitrary arrest 
or detention.'' To ensure freedom from arbitrary detention, Article 9 
(4) further provides that anyone ``who is deprived of his liberty by 
arrest or detention shall be entitled to take proceedings before a 
court, in order that court may decide without delay on the lawfulness 
of his detention and order his release if the detention is not 
lawful.'' The Human Rights Committee has stated that Article 9(1) is 
applicable to all deprivations of liberty, including ``immigration 
control.''
    Amnesty International urges that the seven day detention provision 
be subject to review. In the meantime, its application should be 
strictly monitored and anyone detained under this power should be 
informed of the specific grounds of the detention and be afforded 
prompt access to an attorney, relatives and consular representative if 
requested.
(2). Power to detain non-nationals indefinitely
    Section 236 (A) (a) of the Patriot Act allows the Attorney General 
to continue to detain non-nationals certified as a danger to national 
security after removal proceedings have been initiated. Under the 
legislation, a non-national whose removal ``is unlikely in the 
reasonably foreseeable future'' may be detained indefinitely, if the 
Attorney General considers that release ``will threaten the national 
security of the United States or the safety of the community or any 
person.'' People detained under this broad provision could include non-
nationals who cannot be removed because they are stateless; whose 
country of origin will not accept them; or who are granted relief from 
deportation because they would face torture if returned to their 
country of origin.
    The legislation authorizes the Attorney General to detain people 
under the above provisions on mere suspicion that they are a threat to 
national security. Although the act provides for habeas corpus review 
of the detention \15\ and six-monthly reviews by the Attorney General 
at which the detainee can submit evidence, it is unclear how much 
information the government will be required to produce in support of 
the certification that the non-national is a ``terrorist'' or supports 
``terrorism''. In the past, the Attorney General has detained non-
nationals facing deportation on the basis of ``secret evidence'' of 
alleged terrorist links not made available to the detainees or their 
attorneys. Amnesty International considers that no-one should be 
detained on the basis of evidence they are unable to review or 
challenge. Such a procedure lacks the essential guarantees under 
international law to protect people from arbitrary or wrongful 
deprivation of liberty.
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    \15\ The Act provides that ``in general'' judicial review of any 
action or decision made under Section 236 (A), including judicial 
review of the merits of the Attorney General's certification, is 
available ``exclusively in habeas corpus proceedings'' (Section 236(A) 
(a) 7 (b)
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    Amnesty International raised its concerns about the use of secret 
evidence in a letter to the Attorney General in July 2000 about the 
case of Dr Mazen Al-Najjar. Dr Al-Najjar is a Muslim cleric and 
academic who was held in jail for three and a half years pending an 
appeal against a deportation order imposed for overstaying his student 
visa. He was denied bail on the basis of classified evidence introduced 
by the government that he was a threat to national security, which was 
reviewed in camera by a judge without either Dr AI-Najjar or his 
attorney being present. Dr Al-Najjar--who denies any involvement with 
terrorism--was given only a one-sentence summary of the ``evidence''. 
In May 2000 a US federal district judge ruled that the reliance on 
classified evidence to detain him breached his constitutional right to 
``confront and rebut that evidence'' and to a ``fundamentally fair 
hearing''. He was freed in December 2000 after a further hearing at 
which a court found the evidence insufficient to justify detention.\16\ 
The Department of Justice has lodged an appeal against this ruling, 
which was still pending in November.
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    \16\ In the May 2000 ruling, the judge had ordered a new bail 
hearing, the first phase of which would be an open record hearing, 
after which the government would still be permitted to present 
classified information, but only on condition that a ``meaningful 
summary'' was provided to Al-Najjar and his attorney. The open record 
hearing was held before another judge in August and October 2000, after 
which the judge ruled that there was no evidence that Dr A(-Najjar was 
a threat to national security. Dr Al-Najjar was released in December 
after the same judge went on to consider the government's classified 
evidence, and concluded that it did not differ greatly from that 
presented during the open records proceeding and was again insufficient 
to constitute grounds for detention.
---------------------------------------------------------------------------
    On 24 November 2001, Dr Al-Najjar was again taken into custody 
after the I1`'' Circuit Court of Appeals upheld his final deportation 
order. As he is a stateless Palestinian who has no country to return 
to, his case may become a test case under the new detention provisions, 
should he continue to be detained. Last June the US Supreme Court 
issued a landmark ruling stating that the indefinite detention of non-
US nationals whose final order of removal had been entered, but whose 
deportation was not ``reasonably foreseeable'', was unconstitutional. 
The ruling applied to several thousand foreign nationals convicted of 
crimes in the USA who could not be deported because there was no 
country which would accept them. The ruling left open the possibility 
of the government continuing to detain non-nationals when limited to 
``specially dangerous individuals and subject to procedural 
protections''.\17\ The ruling led to the release under strict 
supervision of more than 300 foreign nationals who were not considered 
a danger to the community. However, the Department of Justice has 
recently published new regulations invoking ``special circumstances'' 
such as terrorism, national security, danger to the community or health 
reasons (including mental disorders or contagious diseases) to keep 
``deportable'' foreign nationals in custody. These rules apply in 
addition to the provisions of the Patriot Act.
---------------------------------------------------------------------------
    \17\ Zadvydas v Davis et al., 000 U.S.99-7791 (2001).
---------------------------------------------------------------------------
    Amnesty International believes that states should not detain people 
who are considered to be a threat to national security unless they are 
charged with recognizable criminal offences promptly and tried without 
delay or action is being taken to extradite or deport within a 
reasonable period. Amnesty International opposes the indefinite 
detention of foreign nationals for whom there is no realistic 
possibility of deportation being effected. Such a measure has the same 
effect as a severe criminal sanction (deprivation of liberty) but 
without the due process standards and safeguards contained in the 
criminal justice system. Amnesty International considers that this 
violates fundamental human rights and that anyone detained in such 
circumstances should be charged with a recognizably criminal offence 
and brought to trial or released.
    The legislation requires the Attorney General to report to Congress 
every six months on the number of non-US nationals certified as a 
suspected ``terrorist'' or national security risk; the grounds of the 
certification; the nationalities of the individuals so certified; 
length of detention; number granted relief from removal; number 
removed; number no longer certified; and the number released from 
detention.
    This clause is important in providing public scrutiny of how the 
expanded removal/detention provisions will be implemented. However, 
this should not prevent the government from providing information on 
arrests and detentions as they take place. Steps should be taken to 
avoid the secrecy surrounding the present detentions (see below).
    While Amnesty International's comments in this document are limited 
to the due process aspects of the detention powers under the Patriot 
Act, there are also concerns about the expanded definitions of 
``terrorism'' under the Act, which civil rights groups fear could be 
used against non-nationals on the basis of their political beliefs and 
associations, who have not engaged in or supported ``terrorism'' (see 
note 9, above). Amnesty International will be monitoring implementation 
of the act and will present further comments in due course.
               4. conditions of detention--ill-treatment
    Amnesty International is concerned that many of those detained 
during the 11 September sweeps are held in harsh conditions, some of 
which may violate international standards for humane treatment. There 
have also been allegations of physical and verbal abuse of detainees by 
guards, and failure to protect detainees from abuses by other inmates.
    There has been concern for some years about the poor conditions 
under which immigration detainees are held in INS detention facilities 
or local jails. Although the INS promulgated new standards for the 
treatment of INS detainees earlier this year, as noted above, these 
standards are not universally applied (see section 2).\18\ Amnesty 
International has received reports suggesting that immigration 
detainees arrested after 11 September are being subjected to more 
punitive conditions than before in some facilities. There are also 
reports that people of Muslim or Middle-Eastern origin are treated more 
harshly than other inmates. Reports include detainees being placed in 
solitary confinement and denied exercise; required to wear full 
restraints, including leg-irons, during visits; denied contact visits 
with families; given an inadequate diet; denied personal possessions 
and copies of books in Arabic, including the Quran.
---------------------------------------------------------------------------
    \18\ As well as better access to counsel, the standards cover a 
range of conditions including improved visitation with family and 
friends; rights of detainees to exercise their religion free from 
harassment and to participate in group religious activities.
---------------------------------------------------------------------------
    Amnesty International is also concerned by reports that some people 
travelling to the USA since 11 September have been detained on arrival 
for questioning at US airports on security grounds and subjected to 
cruel, inhuman or degrading treatment, including being denied food for 
long periods and kept in shackles.
    Examples of ill-treatment include:

        3 Hasnain Javed, a Pakistani student (held for three 
        days in September for overstaying his visa) was allegedly 
        beaten and had a tooth chipped by inmates who called him a 
        ``terrorist'' while he was detained in jail in Wiggins, 
        Mississippi. He reports that he tried to call for assistance 
        through an intercom but guards failed to respond. Later that 
        night he was allegedly stripped naked and again beaten by 
        inmates; again guards failed to respond to his cries for help.
         A Palestinian man detained since 22 September in a 
        Texas jail for a visa violation, is reported to be held in 
        solitary confinement with only one hour of exercise a week (in 
        a small enclosed yard). He is shackled during non-contact 
        visits with his family; denied personal property and, unlike 
        other inmates, denied access to TV.
         A Saudi Arabian man detained on an immigration 
        violation in Denton County Jail, Texas, initially spent a week 
        without a mattress, bedding, blanket or clock to tell him when 
        to recite his Muslim prayers; his conditions improved only 
        after an appeal by his attorney to the regional INS director. 
        He was allowed to see his wife eight days after his arrest and 
        was made to wear leg-irons during the second non-contact visit; 
        he is still allowed far fewer visits than other inmates have 
        with relatives. He has reportedly asked to remain in solitary 
        confinement through fear for his safety if held with other 
        inmates.
         Detainees awaiting deportation in Mecklenburg County 
        Jail, North Carolina, are alleged to have been stripped naked 
        and blasted with cold air by guards in early November; the wife 
        of one man reported that only inmates of Middle Eastern descent 
        were subjected to this treatment and when her husband tried to 
        complain of abuse during telephone calls, the calls were 
        terminated by guards.
         Five Israelis arrested on 11 September in New York 
        were held incommunicado for about a week, and were allegedly 
        interrogated by police while blindfolded and in only their 
        underwear.
         An elderly Maltese couple arriving in the USA in 
        September for a vacation with their daughter (a US resident) 
        were refused entry at Philadelphia airport, questioned 
        extensively by INS officers and held overnight in a detention 
        centre where they were allegedly denied all food and water, 
        despite the woman being a diabetic. The husband (a 63-year old 
        dermatologist with no criminal record) was kept in heavy wrist 
        and foot chains until both were put on a plane home the next 
        day.\19\
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    \19\ Information on these and other cases was obtained through 
contact with lawyers and relatives by Amnesty International and media 
reports.

    Some of the above would violate the prohibition of torture or other 
cruel, inhuman or degrading treatment under the Convention against 
Torture and the ICCPR. In addition, Article 10 of the ICCPR states that 
``All persons deprived of their liberty shall be treated with humanity 
and with respect for the inherent dignity of the human person''. Some 
of the reported conditions fall short of specific provisions of the UN 
Standard Minimum Rules for the Treatment of Prisoners which stipulate, 
for example, that all prisoners and detainees should receive a minimum 
of one hour of outside exercise daily, and that restraints should be 
applied only when ``strictly necessary'' as a precaution against escape 
or to prevent damage or injury, and that ``chains or irons shall not be 
used as restraints''.
    Amnesty International urges the Department of Justice to ensure 
that all prisoners and detainees are treated humanely in accordance 
with the above international standards, whether in local or federal 
facilities, or at airports. We urge the department to fully investigate 
all allegations of abuse of INS and other federal detainees held in 
local and federal facilities.
    The recent standards promulgated for the treatment of immigration 
and asylum seekers should be extended to all facilities housing 
immigration detainees, including local and county jails. The INS should 
ensure that these are strictly monitored and adhered to.
                5. lack of information about detentions
    Amnesty International shares the concern expressed by many 
commentators and human rights advocates regarding the unprecedented 
levels of secrecy surrounding the 11 September detentions. While some 
information may be privileged on security or privacy grounds, the 
extraordinary lack of data does not appear to be justified or in the 
public interest. Without such data, it is impossible to assess how far 
the rights of those detained are being protected; the true extent of 
any abuses reported; whether or not there has been any practice of 
incommunicado detention on a systematic level; how effectively the 
authorities are dealing with such concerns.
    On 29 October, Amnesty International and a group of US human rights 
organizations made a joint formal request to the Department of Justice 
to provide detailed information under the Freedom of Information Act on 
the arrests and detentions, including the identities and nationalities 
of those detained; their current status and location; and whether they 
have legal representation. The letter also seeks information on ``All 
policy directives or guidance issued to officials about making public 
statements or disclosures about these individuals'' and on the 
identities of any courts giving orders to seal information in specific 
cases.
    The letter asks for the information to be provided urgently, 
referring to the ``growing number of reports which, if accurate, raise 
serious questions about deprivations of fundamental due process, 
including imprisonment without probable cause, interference with the 
right to counsel, and threats of serious bodily injury''--and states 
that ``...the unprecedented secrecy surrounding the detentions of 
several hundred individuals, which has now lasted for several weeks, in 
itself raises questions about the detentions'' and ``prevents any 
democratic oversight of the government's response to the attacks''.
    Amnesty International calls on the Department of Justice to provide 
the information requested without delay.
                           6. discrimination
    Amnesty International welcomes the strong action taken by the 
Department of Justice to respond to attacks and acts of discrimination 
perpetrated against people perceived to be Muslim or of Middle-Eastern 
origin in the wake of 11 September. We understand that the Civil Rights 
Division (CRD) of the Department of Justice, working with US Attorneys 
and the FBI, has opened more than 60 civil and criminal investigations 
into acts by private individuals committed in retaliation for 11 
September, including killings, death-threats, assaults, and attacks on 
mosques and businesses.
    The CRD has also set up a National Origin Working Group to combat 
``postterrorism discrimination'' against targeted groups by receiving 
reports of ``violations based on national origin, citizenship status 
and religion, including those related to housing, education, 
employment, access to government services, and law enforcement"; 
referring cases to the appropriate federal authorities; conducting 
outreach work with communities; and working to ensure the provision of 
effective services to victims of civil rights violations.
    In welcoming these initiatives, we note that some concern has been 
expressed about the perceived, or potentially discriminatory effects of 
certain law enforcement measures, including the post-11 September 
detentions. It appears that many, if not most, of those detained in the 
11 September investigations are Muslim men of South Asian or 
MiddleEastern origin. Amnesty International is aware that the security 
forces may be acting on a range of intelligence and other information 
when questioning suspects or making arrests. However, concern has been 
expressed that some people arrested in the 11 September investigations 
are being held in custody on relatively minor violations which would 
normally qualify for release on bail. As noted above, there are also 
complaints that some detainees who are Muslim or of Middle-Eastern 
origin are being treated more harshly than other inmates while in 
detention.
    On 9 November 2001, the Attorney General issued a memorandum with 
instructions to federal prosecutors and state police anti-terrorist 
task forces to interview a further 5,000 named individuals in the USA 
on student, tourist or business visas. Although the names have not been 
released, sources have indicated that most people on the list are 
Middle-Eastern males aged between 18 and 33. Several state police 
chiefs have expressed concern about this directive on the ground that 
questioning immigrants who are not suspected of a crime -unless such 
interviews are strictly voluntary--may violate state laws and police 
guidelines which prohibit ``racial profiling'' (unfair treatment by law 
enforcement officials, including stops and searches, on the basis of 
race or ethnic origin).
    The USA has ratified the UN Convention on the Elimination of All 
Forms of Racial Discrimination (CERD), Article 5 of which calls on 
States Parties to undertake to prohibit and eliminate racial 
discrimination in all its forms and to guarantee to everyone the right 
to equality before the law. In its report to the UN Committee on the 
Elimination of Racial Discrimination in September 2000, the US 
Government stated that ``Racial discrimination by public authorities is 
prohibited throughout the United States, and the principle of non-
discrimination is central to government policy throughout the 
country.'' The US delegation also told the Committee during its 
consideration of the US report in August 2001 that the Bush 
administration was committed to eliminating the practice of racial 
profiling.\20\
---------------------------------------------------------------------------
    \20\ Introductory remarks of the US delegation to the Committee in 
Geneva on 3 August 2001, during the Committee's examination of the 
USA's initial report on how it was implementing the provisions of CERD.
---------------------------------------------------------------------------
    Amnesty International believes it is essential that the US 
Government remains as fully committed to upholding these principles of 
non-discrimination in the present challenging climate. Amnesty 
International urges that all precautions are taken to ensure that 
people are not arrested or detained or otherwise treated unfairly on 
grounds of their ethnic origin, race or religion. Such practices would 
violate standards under both international and US law.\21\
---------------------------------------------------------------------------
    \21\ Article 5 of CERD calls on states to ``. . .guarantee the 
right of everyone without distinction as to race, colour, or 
nationality or ethnic origin, to equality before the law'', including 
``equal treatment before the tribunal and all other organs 
administering justice'' and the ``right to security of person and 
protection by the state against violence or bodily harm, whether 
inflicted by government officials or by any individual group or 
institution''. Article 26 of the ICCPR states ``All persons are equal 
before the law and are entitled without any discrimination to equal 
protection of the law. In this respect, the law shall prohibit any 
discrimination and guarantee to all persons equal and effective 
protection against discrimination on any ground such as race, colour, 
sex, language, religion, political or other opinion, national or social 
origin, property, birth or other status.''
---------------------------------------------------------------------------
    Amnesty International believes it is necessary to ensure that the 
strongest safeguards against discrimination prevail in implementing the 
Patriot Act. As the legislation gives the government extraordinary 
detention powers which apply only to non-nationals, it is particularly 
important to ensure that immigrant communities are not unfairly 
targeted.
    Amnesty International is also concerned that the special military 
commissions allowed for under the Presidential Order of 13 November 
would also be discriminatory, in that they would apply only to non-US 
citizens who would be tried by a lesser standard of justice than US 
nationals. Amnesty International has called for this order to be 
revoked (see 11 below).
 7. new rule permitting monitoring of inmate conversations with lawyers
    Amnesty International is deeply disturbed by a new interim rule 
introduced by the Department of Justice on 31 October 2001, which 
permits the Bureau of Prisons to monitor previously confidential 
written or verbal communications between attorneys and their imprisoned 
clients whenever the Attorney General certifies that ``reasonable 
suspicion exists to believe'' that an inmate may use such communication 
``to further or facilitate acts of terrorism''. This rule applies to 
all federal prisoners, and to people ``held as witnesses, detainees or 
otherwise'' by INS agents or other federal authorities.
    Although the Department of Justice has stated that procedural 
safeguards will protect the right to attorney-client confidentiality 
regarding legal advice,\22\ this rule erodes a fundamental principle 
under international standards, which requires governments to ensure 
that all arrested, detained or imprisoned people have a right to 
communicate with an attorney in full confidentiality.\23\ Amnesty 
International is concerned that such discretionary power concentrated 
in the hands of a few law enforcement officials, with no judicial 
oversight, is inherently open to abuse. Confidentiality is an essential 
component of the right to effective representation by counsel. Such 
monitoring, particularly in the case of witnesses, unconvicted and pre-
trial detainees, could severely compromise the right of accused or 
detained persons to have adequate facilities to prepare a defence, as 
required under Article 14 of the ICCPR (which sets out fair trial 
guarantees). It also undermines the presumption of innocence guaranteed 
under Article 14. Prisoners may feel inhibited in discussing not only 
matters relating to their case but also in reporting any abuses they 
may be suffering, through fear of retaliation. Confidential mechanisms 
for communicating with the outside, particularly attorneys, are an 
important safeguard against abuse.
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    \22\ The rule ``requires that privileged information not be 
retained by the government monitors and that, apart from disclosures 
necessary to thwart an imminent act of violence or terrorism, any 
disclosures to investigators or prosecutors must be approved by a 
federal judge''.
    \23\ Principle 18(4) of the Body of Principles states: ``Interviews 
between a detained or imprisoned person and his legal counsel may be 
within sight, but not within the hearing, of a law enforcement 
official''. Principle 8 of the Basic Principles on the Role of Lawyers 
states: ``All arrested, detained or imprisoned persons shall be 
provided with adequate opportunities, time and facilities to be visited 
by and to communicate and consult with a lawyer, without delay, 
interception or censorship and in full confidentiality. Such 
consultations may be within the sight, but not within the hearing, of 
law enforcement officials.''
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    Amnesty International considers that there are already appropriate 
remedies under existing federal law in cases where it is suspected that 
attorney-client communications may be used to further criminal 
activities. These remedies include court-ordered monitoring of 
communications where necessary, and other measures which are subject to 
appropriate judicial review. Amnesty International believes that the 
new rule should be repealed or at the very least a court order should 
be required in each case before any monitoring takes place.
    8. federal political prisoners held incommunicado following 11 
    september: new rule extending authority to detain prisoners in 
                              segregation
    Amnesty International is concerned by reports that more than a 
dozen federal prisoners serving sentences in federal prisons for 
various politically motivated offences unconnected with the 11 
September attacks were removed from the general prison population on or 
shortly after 11 September and placed in solitary confinement in high 
security units. Some were denied phone calls with attorneys while in 
segregation; several were also denied all visits and mail and were 
effectively held incommunicado for between 10 days and two weeks. None 
was informed of the reasons for their removal to the high security 
units or for the suspension of visits and phone calls.\24\
---------------------------------------------------------------------------
    \24\ Prisoners placed under such measures include Philip Berrigan, 
a 77-year-old peace activist serving a one-year and oneday prison 
sentence for damaging a military aircraft--he was reportedly taken from 
the prison's general population, denied visits and phone calls from his 
wife and placed in ``incommunicado'' segregation for 10 days; Antonio 
Comacho Negron, a Puerto Rican independence activist serving time for 
bank robbery, who was held incommunicado in a SHU unit for 21 days; 
Marilyn Buck, serving a 70-year sentence for crimes connected to the 
Black Liberation Army, who was taken from the general prison population 
and placed in segregation part of which was ``incommunicado"; Sundiata 
Acoli, in prison since 1973, placed in a SHU unit on 11 September where 
he remained for at least six weeks and was denied access to his 
attorney.
---------------------------------------------------------------------------
    Since then the Bureau of Prisons has issued an administrative 
directive allowing the Director to extend the time in which prisoners 
may be placed under ``special administrative measures'' (including 
segregation in high security units) on security grounds for renewable 
one-year periods.\25\ Amnesty International is concerned that this may 
mean people being placed in solitary confinement for lengthy periods--
even indefinitely--without adequate safeguards or review. Bearing in 
mind that long-term isolation can amount to cruel, inhuman or degrading 
treatment, Amnesty International is seeking more information from the 
Bureau of Prisons regarding this procedure including the precise 
grounds on which such measures may be invoked; what safeguards exist to 
ensure due process rights; and the conditions under which such 
prisoners will be held.
---------------------------------------------------------------------------
    \25\ The directive was published on 31 October 2001 as an ``Interim 
rule with request for comments'' to be implemented immediately.
---------------------------------------------------------------------------
     9. interrogation techniques- the spectre of torture is raised
    Amnesty International is deeply concerned by media reports 
suggesting that US security forces may be considering using ``pressure 
techniques'' including the ``truth serum'' Sodium Pentothal in order to 
elicit information from detainees during interrogation. Such methods 
would violate human rights treaties to which the US is a party and 
would severely undermine the USA's standing in the international 
community.
    The USA has ratified the ICCPR and the Convention against Torture 
which prohibit torture or other cruel, inhuman or degrading treatment 
in all circumstances, including times of national emergency.\26\ In its 
report to the Committee against Torture \27\ in October 1999, the US 
Government stressed that, although torture was not a distinct federal 
crime within US territory, existing federal and state laws already 
outlawed all acts falling within the definition of torture. The US made 
clear that:
---------------------------------------------------------------------------
    \26\ The Convention against Torture states: ``No exceptional 
circumstances whatsoever, whether a state of war or a threat of war, 
internal political instability or any other public emergency, may be 
invoked as a justification of torture'' (article 2 (2). The ICCPR 
similarly states that no derogation is permissible from Article 7, 
which prohibits torture or other cruel, inhuman or degrading treatment 
or punishment.
    \27\ The international body which monitors ratifying states' 
compliance with their obligations under the Convention against Torture.

        Torture is prohibited by law throughout the United States. It 
        is categorically denounced as a matter of policy and as a tool 
        of state authority. Every act constituting torture under the 
        Convention constitutes a criminal offense under the law of the 
        United States. No official of the government, federal, state or 
        local, civilian or military, is authorized to commit or to 
        instruct anyone else to commit torture. Nor may any official 
        condone or tolerate torture in any form. No exceptional 
        circumstances may be invoked as a justification of torture. 
        U.S. law contains no provision permitting otherwise prohibited 
        acts of torture or other cruel, inhuman or degrading treatment 
        or punishment to be employed on grounds of exigent 
        circumstances (for example, during a ``state of public 
        emergency') or on orders from a superior officer or public 
        authority, and the protective mechanisms of an independent 
        judiciary are not subject to suspension.\28\
---------------------------------------------------------------------------
    \28\ US Department of State Initial Report of the United States of 
America to the UN Committee against Torture, submitted to the Committee 
on October 15, 1999. The report also states: ``While the constitutional 
and statutory law of the individual states in some cases offers more 
extensive or more specific protections, the protections of the right to 
life and liberty, personal freedom and physical integrity found in the 
Fourth, Fifth and Eighth Amendments to the United States Constitution 
provide a nationwide standard of treatment beneath which no 
governmental entity may fall. The constitutional nature of this 
protection means that it applies to the actions of officials throughout 
the United States at all levels of government; all individuals enjoy 
protection under the Constitution, regardless of nationality or 
citizenship.'' (AI emphasis)
---------------------------------------------------------------------------
    Any withdrawal from such a clear affirmation of US policy in this 
area would send a grave signal to the international community about the 
USA's commitment to the respect and promotion of human rights. Any 
acceptance of torture in the United States risks eroding respect for 
the rule of law elsewhere. Furthermore, were the US Government to 
sanction even ``moderate physical pressure'' on even a few detainees, 
it would almost inevitably lead to an expanded use, as Amnesty 
International has found in more than 40 years of documenting the use of 
torture.
    The UN Committee against Torture has stated that the application of 
so called ``moderate physical pressure'' as an authorized mode of 
interrogation clearly breaches the Convention against Torture. It has 
ruled that even if a suspect is believed to have information about 
imminent attacks against the state, the following methods of 
interrogation may not be used as they violate the prohibition on 
torture and illtreatment: restraining in very painful conditions; 
hooding; playing of loud music; prolonged sleep deprivation; threats, 
including death threats; violent shaking; and using cold air to chill 
the detainee.\29\
---------------------------------------------------------------------------
    \29\ UN Doc. CAT/C/SR.297, reporting on Israel's compliance with 
the Convention against Torture--the committee recommended that 
interrogations by Israeli security officers applying these methods 
``cease immediately''.
---------------------------------------------------------------------------
    Amnesty International opposes the use of Sodium Pentothal and other 
so-called ``truth serum'' drugs to interrogate suspects on the ground 
that this constitutes cruel, inhuman and degrading treatment and should 
therefore be prohibited as a method of eliciting information.\30\ Such 
use would also constitute physical and psychological pressure outlawed 
under international standards on interrogations. Principle 21 of the 
Body of Principles states: ``No detained person while being 
interrogated shall be subjected to violence, threats or methods of 
interrogation which impair his capacity or decision or his judgement.'' 
The InterAmerican Convention to Prevent and Punish Torture expressly 
defines torture as including ``the use of methods upon a person 
intended to obliterate the personality of the victim or to diminish his 
physical or mental capacities, even if they do not cause physical pain 
or mental anguish.'' \31\ ``The use of such drugs in this context also 
constitutes a breach of medical ethics, in so far as medicine and 
medical expertise should never be used for any purpose other than 
evaluating, protecting, or improving the physical and mental health of 
prisoners and detainees.
---------------------------------------------------------------------------
    \30\ Use of drugs has been documented as a form of torture in a 
number of countries, including Chile and the former Soviet Union. 
Principle 6 of the Body of Principles states that ``The term `cruel, 
inhuman or degrading treatment' should be interpreted so as to extend 
the widest possible protection against abuses, whether physical or 
mental...'' Such use would also violate standards prohibiting compelled 
confessions.
    \31\ It has also been noted that under US case law confessions male 
under the influence of truth serums arc also not ``voluntary'' and are 
consequently inadmissible as evidence: see Human Rights Watch ``The 
Legal Prohibition Against Torture', November 2001.
---------------------------------------------------------------------------
    Article 15 of the Convention against Torture obliges the state 
parties to ``ensure that any statement which is established to have 
been made as the result of torture shall not be invoked as evidence in 
any proceedings, except against a person accused of torture as evidence 
that the statement was made.'' Other international standards exclude 
not only statements extracted under torture, but also those elicited as 
a result of other cruel, inhuman or degrading treatment or punishment.
    The Human Rights Committee has expanded the prohibition on the use 
of evidence obtained under duress, by stating that ``the law must 
prohibit the use of admissibility in judicial proceedings of statements 
or confessions obtained through torture or other prohibited 
treatment.'' \32\ The Committee has further stated that: ``[t]he law 
should require that evidence provided by . . .any. . .form of 
compulsion is wholly unacceptable.'' \33\
---------------------------------------------------------------------------
    \32\ Human Rights Committee General Comment 20, para 12.
    \33\ Human Rights Committee General Comment 13, para 14.
---------------------------------------------------------------------------
    The USA has taken some important steps to meet its obligations 
under the Convention against Torture. It has enacted legislation 
affirming US policy not to return any person to a country where there 
are substantial grounds for believing the person would be in danger of 
being subjected to torture, as required under Article 3 of the 
Convention. In 1994 it enacted a federal law extending US jurisdiction 
over any act of torture committed outside the USA by a US national or 
an alleged offender present in the USA regardless of nationality. It 
has also enacted the Torture Victims Protection Act, allowing both 
foreign nationals and US citizens to claim damages against any 
individual who engages in torture or extrajudicial killing under 
``actual or apparent authority or under color of law of any foreign 
nation''.
    Amnesty International calls on the Attorney General to make public 
assurances that no techniques involving torture or other cruel, inhuman 
or degrading treatment, will be invoked or introduced during 
interrogation of suspects. The US Government should make it clear that 
abuses including torture, cruel, inhuman or degrading treatment and 
other improper methods by any branch of US law enforcement will not be 
tolerated under any circumstances and will be prosecuted as a crime.
                10. suspects arrested in other countries
    Amnesty International believes that, when required, all states are 
obliged to cooperate in the detection, arrest, and prosecution of 
persons implicated in crimes, regardless of the nationality of the 
perpetrators or the victims. Such cooperation should, however, pay 
scrupulous respect to international human rights standards relating to 
arrest, detention, treatment, and trial. In this respect, Amnesty 
International urges the US Govemment to promote these standards at all 
times, particularly when its own agents are involved outside US 
territory.
    The Washington Post reported on 22 November that ``at the urging of 
the CIA, foreign intelligence services and police agencies in 50 
countries have arrested and detained about 360 suspects with alleged 
connections to Osama bin Laden's al Qaeda network or other violent 
terrorist groups'' since the 11 September attacks.
    Just as the US Government may not send detainees to another country 
to be interrogated if there are substantial grounds for believing that 
the person would be at risk of torture or other cruel, inhuman or 
degrading treatment or punishment, it has an obligation also to oppose 
the use of such treatment against any of the detainees arrested at its 
behest in other countries. For example, the FBI and CIA are reported to 
have been given access to, and to the interrogation sessions of, ``Abu 
Ahmed'', an alleged senior member of al Qaeda arrested by the 
authorities in Saudi Arabia, a country where torture and ill-treatment 
continues to be reported. If US agents become aware of any use of such 
treatment against detainees to whom they have access, they must 
publicly denounce it.
    The USA may seek to obtain the extradition to the United States of 
detainees held abroad. In such cases, it should respect foreign laws 
and the provisions of relevant extradition treaties, in particular in 
cases where the extradition of suspects is barred in the absence of 
guarantees that the death penalty will not be sought by the 
retentionist country, in this case the United States. Amnesty 
International is concerned by the USA's past record and official 
sanctioning of the forcible abduction, or other ``irregular rendition'' 
of criminal suspects from abroad.\34\
---------------------------------------------------------------------------
    \34\ See No return to execution: The US death penalty as a barrier 
to extradition (Amnesty International Index: AMR 51/171/2001, November 
2001).
---------------------------------------------------------------------------
    In this regard, Amnesty International has asked the Department of 
Justice for information on the current legal status and whereabouts of 
Jamil Qaseem Saeed Mohammed. Mohammed, a Yemeni national reportedly 
wanted in connection with the bombing of the US destroyer, the USS 
Cole, in Yemen in October 2000 is reported to have been handed over in 
secret to US agents at Karachi International Airport in Pakistan on 26 
October 2001 and flown to an unknown destination. In telephone calls to 
the Department of Justice, Amnesty International has been unable to 
establish the accuracy of the reports or the whereabouts of Jamil 
Mohammed, and repeats its request for information in this memorandum if 
indeed he was or is in US custody.
          11. proposed trials by special military commissions
    Amnesty International is deeply concerned by the Military Order 
signed by President George Bush on 13 November allowing for the trial 
by special military commissions of non-US citizens suspected of 
involvement in ``international terrorism''. It has called for the order 
to be revoked on the grounds that its proposals flout international 
fair trial standards.
    The Military Order expressly bypasses established principles of law 
and evidence applied in the trials of people charged with criminal 
offences in US Courts and circumvents the fair trial protections 
provided for in US military courts under the USA's Uniform Code of 
Military Justice. Under the Military Order, conviction and sentence 
will be determined by a two-thirds majority of the members of the 
special military commission present at the time of the vote. Their 
decisions cannot be appealed to a higher court, and individuals cannot 
seek redress in any court anywhere in the world for any human rights 
violations that may occur during arrest, detention, or prosecution. In 
bypassing international fair trial standards, the Military Order 
contravenes US obligations under international law, specifically the 
International Covenant on Civil and Political Rights, ratified by the 
USA in 1992. Certain fundamental principles must be respected at all 
times, even in time of emergency, including the right of appeal.
    Although the Military Order places the proposed military 
commissions under the jurisdiction of the Department of Defense, 
individuals currently under the jurisdiction of the Department of 
Justice fall within the scope of the Order. Amnesty International urges 
the Department of Justice to oppose the transfer of any suspect under 
its jurisdiction to the jurisdiction of the above military commissions. 
It has been reported that some officials in the US administration have 
raised the possibility of Zacarias Moussaoui, a French national of 
Moroccan origin arrested in Minneapolis on 17 August, being tried 
before the military tribunals. Amnesty International opposes his or any 
other trial before the proposed military commissions.
A summary of Amnesty International's Recommendations
    Amnesty International urges that the US Attorney General and the 
Department of Justice to:

         Make public information on the total number of people 
        arrested to date in connection with the 11 September 
        investigations; dates and place of arrest; the number still 
        detained and the reasons for the detention; length of time in 
        detention; place of detention; and data on the race or 
        ethnicity of those detained. Provide such information regularly 
        on future arrests.
         Ensure that no-one is held incommunicado in custody.
         Publicly reaffirm the US Government's unequivocal 
        opposition to the use of torture.
         Ensure that no person in federal custody, including 
        those held in local or country jails, is subjected to torture 
        or other cruel, inhuman or degrading treatment, and that law 
        enforcement officials will not use methods of interrogation 
        that constitute torture or other treatment prohibited under 
        international standards.
         Ensure that all cases of alleged ill-treatment are 
        thoroughly and impartially investigated, with the results made 
        public. Those responsible for abuses, including discriminatory 
        treatment, should be brought to justice.
         Ensure that everyone arrested or detained is provided 
        with their rights under international standards, as set out 
        under Article 9 of the ICCPR and the Body of Principles, 
        including being informed of the reasons for arrest and given 
        prompt access to attorneys and relatives and consular officials 
        or representatives of other organizations as requested.
         Closely monitor the detention provisions of The 
        Patriot Act, and ensure that arrested or detained persons are 
        brought promptly before a judge and be able to challenge the 
        lawfulness of their detention.
         No-one should be detained on national security grounds 
        unless charged with a recognizable criminal offence and tried 
        without undue delay or action is being taken to deport within a 
        reasonable period. There must be a realistic possibility of 
        deportation being effected. No-one should be deported or 
        returned to a country where they may face torture.
         Ensure that no-one is detained on the basis of 
        evidence they are unable to review or challenge.
         Ensure that INS standards for the treatment of 
        immigration detainees and asylum seekers, introduced into some 
        facilities earlier this year, are extended to all facilities 
        housing such detainees. The standards should be strictly 
        monitored and adhered to.
         Ensure that asylum seekers are generally not detained. 
        If they are detained on security grounds they must be allowed a 
        full and fair hearing of their claim as provided under the 1951 
        Refugee Convention.
         Ensure that no-one is arrested, detained, or subjected 
        to or subjected to unfair or harsh treatment, on the grounds of 
        their ethnic origin, race, nationality or religion.
         Promote and protect international human rights 
        standards in the context of international investigative 
        measures in the wake of 11 September, and in particular to 
        ensure that any US agents with access to detainees in other 
        countries denounce any human rights violations committed during 
        the investigations.
         Not resort to the circumvention of extradition 
        protections in the case of any individual whose custody the USA 
        seeks.
         Oppose the transfer of any individual from Department 
        of Justice jurisdiction to the jurisdiction of the special 
        military commissions proposed by recent executive order. 
        Support revocation of the order.

                                

      Statement of William F. Schulz, Executive Director, Amnesty 
                  International USA, Washington, D.C.

    In a November 27th press conference, Attorney General 
John Ashcroft challenged those who had expressed concern about the 
treatment of individuals detained since September 11 to provide 
specific information to substantiate allegations of civil and human 
rights abuses.
    As the Attorney General was making this assertion, Amnesty 
International USA representatives were submitting a 26-page memorandum 
to him (attached) that provides such information. Since then, Amnesty 
International has continued to investigate and report on specific 
cases. Today, we release our most recent findings (also attached). 
Together, these documents detail how U.S. and local law enforcement 
officials have denied some detainees access to counsel; prevented them 
from seeing relatives; denied them medicine and food; held them in 
handcuffs and shackles for prolonged periods of time; and subjected 
them to beatings and other mistreatment.
    As a nation that takes great pride in its stand for human rights 
and personal freedom, the United States has a responsibility to 
demonstrate to the world that its administration of justice can be both 
evenhanded and transparent. We should not fear the rule of law. We 
should not fear longstanding mechanisms that are designed to help us 
distinguish between the innocent and the guilty. We should not fear a 
court system designed to ensure due process and prevent cruel and 
inhumane treatment. We should not fear our Constitutional protections 
or our international human rights obligations.
    On several occasions, President Bush has spoken forcefully against 
making judgments about individuals based on their race, religion, or 
appearance. Unfortunately, his Administration's current approach to 
justice risks creating a contradiction between his words and his 
actions. Transparency, not secrecy, represents the best mechanism by 
which we can demonstrate to the world that the values we seek to defend 
are also the values we practice. Anything less will only sustain the 
contention of those who would believe that American justice is neither 
fair nor obtainable.
    Amnesty International is a worldwide grassroots movement that 
promotes and defends human rights. For additional information contact 
Alexandra Arriaga, Director of Government Relations, at 544-0200, ext. 
235.

                                

                   Statement of Amnesty International

                         September 11 Detainees
    Amnesty International has documented numerous cases in which those 
individuals detained in the aftermath of September 11 have been denied 
human rights. The following represent a sample of the most recent 
findings. The information on these and other cases is obtained through 
contact with lawyers and relatives, as well as through direct contacts 
with some detainees.
    Hasnain Javed, a Pakistani student held for three days in September 
for overstaying his visa was allegedly beaten and had a tooth chipped 
by inmates who called him a ``terrorist'' while he was detained in jail 
in Wiggins, Mississippi. He reports that he tried to call for 
assistance through an intercom but guards failed to respond. Later that 
night he was allegedly stripped naked and again beaten by inmates; 
again guards failed to respond to his cries for help.
    Mohammed Maddy, an Egyptian arrested on October 3, alleges that 
guards in the Metropolitan Detention Center (MDC) in New York City 
assaulted him. A magistrate ordered photographs to be taken of bruising 
to his arm, which he said was caused by the guards' ill-treatment of 
him. Federal authorities are investigating this case.
    Osama Awadallah, a 21-year-old Jordanian student who was attending 
college near San Diego was arrested on September 21 as a material 
witness in the investigation regarding the September 11 attacks. He was 
moved to MDC in New York City where he alleges that guards insulted his 
faith, kept him from sleeping and ``roughed him up.'' A court filing 
asserts that when Mr. Awadallah arrived in the Metropolitan 
Correctional Center on October 1, a guard shoved him against a wall 
while he was handcuffed, kicked his leg shackles and pulled him by the 
hair to make him face an American flag. The next day, the filing says, 
federal marshals, while escorting Mr. Awadallah to a court hearing, 
pinched his arms while his hands were cuffed behind his back and kicked 
his feet in an elevator. The court papers also say that the incident 
left black-and-blue marks on his arms and his left foot bleeding, and 
that two of Mr. Awadallah's lawyers observed a bruise on his arm when 
they met with him on October 4.
    Ghassan Dahduli, a Palestinian-Jordanian was detained on September 
22 in a Texas jail for a visa violation. He was held for two months in 
solitary confinement with only one hour of exercise a week in a small, 
enclosed yard. He was shackled during non-contact visits with his 
family; denied personal property and, unlike other inmates, denied 
access to TV. On November 28, he was deported to Jordan. He had agreed 
to Voluntary Departure to Jordan, as he was afraid he would be held 
indefinitely in jail in the USA, and was unable to support his family. 
Fearing for their future, his Jordanian wife and five children under 16 
(all of whom are US citizens) left the USA for Jordan three weeks ago 
(before Dahduli's deportation). Two INS agents including the 
investigator in the Dahduli case, accompanied to him to Jordan. His 
wife believes he was handed over to Jordanian security forced on 
arrival in Jordan--she was waiting for him at the airport but he did 
not appear. His whereabouts are unknown at this time. His US attorney 
believes that the INS investigator may have accompanied him to take 
part in an interrogation or that he may have been handed over to the 
Jordanian security forces for more ``pressurized'' interrogation. It is 
unclear if any assurances were sought to prevent his treatment, or 
whether the US has played a role in handing him over to security 
forces. Amnesty International sent a fax to the INS Dallas District 
Director seeking more information on what happened to him on arrival in 
Jordan, and clarification of role of the INS. There has been no 
response from INS as yet.
    A Saudi Arabian man detained on an immigration violation in Denton 
County Jail, Texas, initially spent a week without a mattress, bedding, 
blanket or clock (necessary to recite his Muslim prayers); his 
conditions improved only after an appeal by his attorney to the 
regional INS director. He was allowed to see his wife eight days after 
his arrest and was made to wear leg-irons during the second non-contact 
visit; he is still allowed far fewer visits than other inmates have 
with relatives. He has reportedly asked to remain in solitary 
confinement through fear for his safety if held with other inmates. 
Although he has been given a final deportation, the INS is still 
holding him.
    Detainees awaiting deportation in Mecklenburg County Jail, North 
Carolina, allege that guards forced them to strip naked and blasted 
them with cold air in early November. The wife of one man reported that 
only inmates of Middle Eastern descent were subjected to this treatment 
and that when her husband tried to complain of abuse during telephone 
calls, guards terminated the calls.
    Five Israelis arrested on September 11 in New York were held 
incommunicado for about a week. Police allegedly subjected them to 
prolonged interrogations in which the detainees were kept blindfolded 
and in only their underwear.
    An elderly Maltese couple arriving in the US in September for a 
vacation with their daughter (a US resident) was refused entry at 
Philadelphia airport, questioned extensively by INS officers and held 
overnight in a detention center where they were allegedly denied all 
food and water, despite the woman being a diabetic: The husband (a 63-
year old dermatologist with no criminal record) was kept in heavy wrist 
and foot chains until both were put on a plane home the next day.
    Four South Asian men Mohamed Khan (Pakistan), Najmul Hassan 
(Pakistan), Irfan Ahmed (Pakistan) and Ayazuddin Sheerazi (Indian 
national) were detained in Connecticut on November 24, and have not had 
access to their families since their arrest. When their attorney tried 
to visit them, officials would not confirm they were detained and their 
names did not appear on Immigration and Naturalization Service (INS) 
computerized lists. The attorney eventually gained access only after 
obtaining their alien numbers through another source. Two of the four 
have asylum claims pending.
    Mazen Al-Najjar, a Muslim cleric, was arrested in November on a 
deportation order for overstaying his student visa. Despite having no 
criminal record, he is locked down for 23 hours a day in a small cell 
in solitary confinement in a maximum security prison -with a ban of all 
visits for his family for 30 days. Dr. Al-Najjar was previously 
detained in a US jail for more than three years on the basis of secret 
evidence, while appealing against the deportation order, but a federal 
judge ordered his release last December, after finding there were ``no 
bona fide reasons to conclude that [he] is a threat to national 
security.'' Dr.Al Najjar is being held under powers conferred on the 
Attorney General under the Patriot Act to detain someone on mere 
suspicion of terrorist associations--even though this is the same 
evidence that a court ruled insufficient to justify detention last 
December. He his currently held in far worse conditions than before--
with no prospect of release because, as a stateless Palestinian, he has 
no country to return to, he could remain behind bars indefinitely.
    A Yemeni student arrested on a visa violation after several years 
in the US has reportedly agreed to be deported to Yemen--despite 
fearing he would be at risk there--after spending 45 days in solitary 
confinement in a high security unit.
    NAACP poised to join ACLU in rights fight

                                

 Article by Cecil Angel, Detroit Free Press Staff Writer, December 3, 
                        2001, Detroit, Michigan

               NAACP poised to join ACLU in rights fight
                 chairman: ashcroft threatens liberties
    The NAACP will stand side-by-side with the ACLU in opposing any 
threat to civil liberties posed by the U.S. Justice Department's 
response to terrorism, NAACP Chairman Julian Bond said Sunday in 
Bloomfield Township.
    Bond was the keynote speaker at the American Civil Liberties Union 
Fund of Michigan's annual dinner, at Temple Beth El.
    ``The NAACP and the ACLU were created to fight for freedom and 
justice in a nation dedicated to those goals,'' Bond said. ``We will 
continue this fight now with renewed determination. Each of us has a 
role to play as guardians of our nation's liberty.''
    Bond said the National Association for the Advancement of Colored 
People has been wary of U.S. Attorney General John Ashcroft because he 
stands against everything the NAACP has supported.
    ``He knows something about the Taliban, coming from as he does from 
that wing of American politics,'' Bond said. ``Even before Sept. 11, he 
had moved the department to the far right, making it headquarters for 
the Federalist Society.''
    The society shares Ashcroft's hostility to civil and reproductive 
rights, religious liberty, environmental protection and privacy rights, 
Bond said.
    Since the attacks on Sept. 11, Ashcroft has waged a relentless 
assault on civil liberties, Bond said.
    In the past month, he has allowed the FBI to eavesdrop on 
privileged lawyer-client communications, ordered the interviews of 
thousands of young men of Middle Eastern heritage, and ``advocated a 
Star Chamber system of secret military trials,'' Bond said.
    This month, he's suggested a return to FBI tactics of illegal 
wiretaps and burglaries, Bond said.
    ``He has yet to learn that the protections of our Constitution are 
not a reward for good behavior,'' he said.
    Anti-terrorism efforts are under scrutiny by the NAACP and by the 
ACLU--at the federal and state level.
    Kary Moss, executive director of the Michigan chapter of the ACLU, 
said her organization is concerned about a proposed Michigan 
AntiTerrorism Act. She said the ACLU wants to make sure it doesn't 
infringe on civil liberties.
    Before his dinner speech, Bond spoke about the threat to civil 
liberties. He cited the planned military trials and the roundup and 
detention of people ``on God knows what charge.''
    ``The assumption is that the president knows what's best for us,'' 
Bond said. ``I don't believe he knows what's best for us.''

                                

 Statement of Claudette Shwiry Hamad, Editor, Arab American Institute 
                           Foundation Report

                                Appendix
          hate-based incidents september 11--october 10, 2001
    This report is a compilation of hate-based incidents that have 
occurred in the United States over the one-month period following the 
September 11 attacks on the World Trade Center Towers and the Pentagon.
    The events described were compiled from print, broadcast and 
established Internet media sources and individual testimony. Although 
this report includes 326 incidents in 38 states, there undoubtedly have 
occurred many other episodes of discriminatory actions that have either 
not been reported for fear of further backlash, or not considered 
sufficiently newsworthy.
    The Arab American Institute Foundation is grateful for the research 
efforts its staff, especially webmaster Melyssa Morey, consultant Patsy 
Thomasson, and the American Arab Anti-Discrimination Committee (ADC) 
reports which are cited with source origination.
                                arizona
Assaults
    Phoenix. On Sept. 15th, Frank Silva Roque shot to death Balbir 
Singh Sodhi. Roque allegedly killed Sodhi as part of a multiple-
incident shooting rampage that included shootings at a Lebanese-
American clerk who escaped injury, at another gas station in Mesa, and 
at the home of an Afghan family. (Arizona Republic, 9/18)
    Mesa. 49-Year-old Indian Sikh shot while standing outside his 
Chevron station. Family believes he had been killed because he looked 
`Middle Eastern''. Attack apparently part of multiple incident-shooting 
rampages. Gunman also shot at LebaneseAmerican clerk who escaped injury 
and fired upon home of Afghan family. (ADC, 9/15)
Threats
    Phoenix. Anonymous callers told police they planned to attack 
Middle Eastern businesses. (Arizona Republic, 9/12)
    Tempe. Bomb threat phoned into Islamic Cultural Center. (Arizona 
Republic, 9/12)
Discrimination
    Phoenix. Three Arab men were refused readmission to their Sept. 
25th United Airlines flight to Chicago after a female passenger 
allegedly raised her concern about them. (First plane evacuated 
allegedly for mechanical problems.) The three have filed a lawsuit. 
(Chicago Tribune, 10/4)
    Phoenix. Arab American pilot pulled off line and told he cannot 
fly. Coworker allegedly reported pilot sympathetic to Palestinian 
cause. After background check, put back on and able to fly, but pilot 
concerned he may be terminated. (ADC, 9/19)I11Scottsdale. Bar briefly 
posted sign: ``Arabs not welcome.'' Co-manager later removed it and 
admitted, ``it was a stupid think to do.'' (Arizona Republic, 9/14)
                               california
Assaults
    Los Angeles. Palestinian-born salesman killed while making door-to-
door rounds. Family called killing hate crime, but police say robbery 
was likely motive. (Agence France Presse, 10/9)
    Los Angeles. On an evening walk close to his home, Sikh man wearing 
Pakistani dress attacked by four men who beat and punched him. Norwalk 
police filed report as robbery because attackers ripped his clothes and 
pulled his wallet. However, the Sikh claimed the attackers yelled, 
``terrorist'' as they beat him. (ADC, 10/9)
    San Diego. Two men on motorcycle pulled up next to Sikh woman 
stopped at red light, yanked open her door shouting, ``This is what you 
get for what you've done to us!'' Then, ``I'm going to slash your 
throat!'' The woman raised her elbows to protect her neck and hunched 
over. She was slashed in the head at least twice before the men, 
hearing a car approach, sped off. (San Diego Union-Tribune, 10/5)
    Reedley. Abdo Ali Ahmed, Yemeni grocer shot to death in his shop 
over the weekend. Family members said the day before he was killed, 
death threat that included anti-Arab statements was found on windshield 
of Ahmed's car. It is being investigated as a hate crime. (Washington 
Post, 10/3)
    Fresno. Arab American, Rien Said Ahmed, was shot and killed while 
at work. Witnesses saw four males speed from the store in white sedan. 
No money or merchandise was stolen. Ahmed had received threats since 
mid-September. (The Fresno Bee, 10/2)
    Los Angeles. Thinking he was Iranian, two men bumped a Mexican 
immigrant's car, followed him to his home, broke in and beat him in 
front of his wife and daughter, shouting insults against Arabs. (Agence 
France Presse, 10/2)
    Los Angeles. Driver got into argument with Iranian driver while on 
road. He allegedly yelled racial threats and waved gun at both Iranian 
driver and passenger, also Iranian. Driver charged with making criminal 
threat, violating civil rights and exhibiting firearm. (The Bulletin's 
Frontrunner, 10/1)
    Industry. Two Arab customers in bar beaten by four bouncers. One of 
the customers had been arguing with bartender over bill. Bouncers 
attacked him, breaking his nose and arm, while calling him a terrorist. 
Victim's cousin put his hands up, indicating he did not want trouble, 
asked ``Are you gonna beat me?'' The bouncers turned on him, breaking 
his ribs and bruising his eye. (ADC, 9/30)
    San Fernandes. A 26-year old Indian, said he was walking with a 
white Australian friend early the morning of Sept. 15th, when they were 
approached by a man who called him a ``dirty Arab,'' and punched him 
and the friend. His friend was stabbed in the ensuing brawl and remains 
hospitalized in critical condition. (NY Times, 9/19)
    Police investigating death of Sikh man as possible hate crime. His 
body was found floating in nearby canal two days after family reported 
him missing. (The Hotline, 9/19)
    San Gabriel. Egyptian-American grocery storeowner shot to death in 
what authorities said was robbery, but family called hate crime. Owner 
shot after confrontation with two customers, who sped off in Honda 
driven by a third man. Money in cash register not taken. (Arizona 
Republic, 9/18; ADC, 9/15)
    San Mateo. Three-year old Sikh child hit in the head by gasoline 
bomb thrown through window of her home. The bomb did not explode. (San 
Francisco Chronicle, 9/18)
    San Gabriel. While grocery shopping, woman dressed in Muslim 
clothing attacked by another woman who beat her while yelling, 
``America is only for white people.'' Victim taken to emergency room. 
(Los Angeles Commission on Human Relations, 9/17)
    Beverly Hills. Noticing Koran charm worn around neck of Muslim 
bagel shop customer, another female customer attacked her, saying, 
``Look what you people have done to my people.'' She lunged at the 
Muslim woman making derogatory comments but was restrained by two men. 
The victim called police; storeowner apologized to attacker and offered 
help. (www.hatewatch.org, 9/17)
    Palmdale. Shots were fired into convenience store. 
(www.hatewatch.org, 9/17)
    San Bernardino. Sixty (60)-year old Arab American businessman, 
victim of police brutality after Popeye's employee screamed as the 
businessman was leaving the restaurant, ``He's an Arab, he's an Arab. 
Get him!'' Her cries alerted police officer inside whom pursued the 
frightened customer in his squad car, allegedly yelling, ``Get that f--
--Arab''. When Arab American arrived home, he was followed by 
helicopter and squad cars that rammed his car. Officers shot at him 
point blank with rubber bullets; another officer broke his nose with 
his baton. Man was taken to hospital, then to jail, charged with 
abating the law and assault with deadly weapon (his car). Inmates are 
threatening man. (ADC, 9/14)
    San Francisco. Australian software engineer stabbed in chest by 
someone who allegedly thought engineer's friend, Australian of Indian 
and Hispanic heritage, was Arab. Men said stabbing took place when they 
were passed by a group while crossing street. Scuffle started when 
engineer was punched or bumped by one of the men, who spewed racial 
epithets and said, ``We don't like Arabs'', then wounded engineer. (San 
Francisco Chronicle, 9/14)
    Los Angeles. Young Persian woman exiting restaurant with friend 
followed by another woman, who asked if she is Arab before punching her 
in the eye. (Los Angeles Commission on Human Relations, 9/14)
    Los Angeles. Arab American woman threatened with gun. (Sacramento 
Bee, 9/14)
    Los Angeles. Syrian American convenience store owner shot at twice 
during week; two shots on 9/11 and four shots 9/13. (Los Angeles Times, 
9/14)
    Los Angeles. Two Spanish-speaking women harassed and one beaten by 
woman in doctor's office. Woman allegedly yelled, ``You foreigners 
caused all this trouble'' before attacking them. (Los Angeles 
Commission on Human Rights, 9/12)
    Fremont. Sikh student verbally harassed and physically assaulted at 
his school. (San Jose Mercury News, 9/12)
    San Francisco. Palestinian American teenager beaten. (San Francisco 
Chronicle, 9/11)
Vandalism
    Anaheim. Pakistani restaurant gutted in blaze called suspicious by 
city officials. (Orange County Register, 9/28)
    Los Angeles. Home of Pakistani family burned down after series of 
phone threats. (Family had moved to safer location before blaze. No 
injuries reported.) (ADC, 9/27)
    Los Angeles. Car of Iranian family, parked in their driveway, 
attacked by man with baseball bat and hammer. (Los Angeles Times, 9/22)
    Palo Alto. Tires of car belonging to Palestinian American slashed 
with knife or other sharp object. (ADC, 9/22)
    San Jose. Fire officials reported there had been 14 suspicious 
fires since Sept. 11th. Two occurred 9/14 at homes of East 
Indian and Middle Eastern American families. (San Francisco Chronicle, 
9/18)
    West Sacramento. Sikh temple barricaded with tractor, truck and 
trailer that were padlocked, after refusing angry caller's order to 
lower its religious flag to half mast. Perpetrator charged with felony 
vandalism and trespassing after he jumped into the temple's holy pool. 
(Los Angeles Weekly, 9/20)
    Napa. Sikh American fast food restaurant manager found his car 
vandalized. (Contra Costa Times, 9/19)
    San Jose. Afghan restaurant attacked with bottles and rocks. (San 
Jose Mercury News, 9/18)
    Encino. Afghan/Persian restaurant destroyed in fire 9/17. (Los 
Angeles Times, 9/18)
    San Diego. A cherry bomb exploded on the sidewalk outside the 
Islamic Center 9/16, forcing worshipers to evacuate the building during 
a prayer service. (Los Angeles Times, 9/18)
    San Diego. Mosque struck by paintballs 9/14 and by gunfire during 
morning prayers 9/15. (Boston Globe, 9/14?)
    Los Angeles. Pakistani Muslim returns to mall parking lot to find 
body of his car scratched in several places with ``Nuke em''. 
(www.hatewatch.org. 9/14)
    Woodland Hills. Two students scrawled word ``die in Persian Club's 
booth at Pierce College. (Sacramento Bee, 9/14)
    San Francisco. Bag of blood thrown at immigration office that 
serves Arabs. Anonymous caller told paralegal he left package `for your 
brother Osama bin Laden.'' (Salon.com, 9/13) Perpetrator booked on 
suspicion of destroying property, interfering with another's exercising 
civil rights and one act of terrorizing. Bail was set at $20,000; he 
was released 9/12 on own recognizance. (San Francisco Chronicle, 9/13)
    San Francisco. A bag filled with blood was hurled at the door of a 
law office building in the Mission District 9/12 by someone who 
apparently mistook the building for an Islamic Community Center. The 
name of Osama bin Laden was scrawled on the bag. (Philadelphia 
Inquirer, 9/13)
    Pacifica. Car with ``Free Palestine'' sticker vandalized. (San 
Francisco Chronicle, 9/13)
    Yuba City. Hindu American awoke to find ``USA'' spray painted 
across hood of car and religious medallion that had hung from rearview 
mirror missing. (Sacramento Bee, 9/12)
    Anaheim. Three teenagers hurled skateboard through window of Arab 
American owned market. Police caught perpetrators and their parents 
apologized. (AP, 9/12)
Threats
    Huntington Beach. Man arrested for making a death threat against 
Iranian couple in their 70s. (Los Angeles Times, 9/25)
    Palmdale. Five public high school students were sent home for their 
safety after note was found at school threatening World Trade Center 
attacks would be avenged 9/18 with ``massacre'' with their names listed 
beneath. (AP, 9/20)
    Sign posted on freeway: ``Kill All Arabs.'' (www.hatewatch.org, 9/
17)
    Moreno Valley. Man arrested on suspicion of making terrorist 
threats to radio station KHPY. Caller accused of leaving message on 
station's answering machine, threatening to damage tower. Police 
believe threat connected to station's Sunday morning program, ``Islamic 
Perspective''. (The Press Enterprise, 9/14)
    San Diego. Caller to Middle Eastern grocery store asked if the 
owner sold rat poison, ``I wish you do so I can poison you.'' (San 
Diego Union-Tribune, 9/14)
    Los Angeles. Sign found in Hall of Records elevator, ``Kill all 
towel heads.'' (Los Angeles Commission on Human Relations, 9/13)
    San Jose. Islamic group received calls threatening lives of all 
Muslims. Another caller said, ``You ruined the country and you will all 
die!'' (www.hatewatch.or?, 9/11)
Harassment
    University of So. California Muslim Public Affairs Council reported 
some students harassed on campus and some women have had their veils 
pulled off. (NBC-4 News, 9/14)
Discrimination/Profiling
    Los Angeles. Egyptian American business owner accused by 
deliverywoman of `terrorist threats' (also sexual battery and 
imprisonment) on 10/2. Although police insisted he was not being 
arrested (and therefore not read Miranda rights), was not allowed to go 
to station on own volition, was handcuffed in front of pregnant wife, 
employees and customers; at station was photographed and fingerprinted 
and questioned. Passed voluntary polygraph test, released 10/4 on 
$50,000 bail. Week of 10/14, computers and other equipment confiscated. 
On 10/22, judge granted prosecutors three-week continuance to find 
evidence of `terrorist threat.' (AAI, 10/12, 10/24)
    Stockton. Jordanian man, single father of two, fired from job at L3 
Celerity systems in Cupertino. Said although week before attacks, 
weekly evaluation was positive, `as usual' day after boss gave him 
negative review and forced him to report whereabouts every half hour. 
Jordanian lost job a week later in series of layoffs, though company 
kept technicians with less seniority. Has received no response to many 
job applications he has submitted since then. Is considering legal 
action. (Newhouse News, 10/17)
    San Francisco. A teenage boy was denied entrance on a public bus 
due to his appearance. (San Francisco Chronicle, 9/25)
    Los Angeles. Six passengers of Indian ethnicity brought to back of 
plane on flight from LAX to Washington Dulles. The pilot first 
questioned the men; FBI and INS agents arrived an hour later and 
interrogated passengers. Three passengers left plane because they were 
uncomfortable. (ADC, 9/26)
    Fresno. Hairdresser stomps off; salon owner yells at Pakistani 
American client and orders him to leave immediately after he refused to 
answer hairdresser's questions about bin Laden and recent events. FBI 
agents went to man's home later that night and interrogated his wife. 
(ADC, 9/24)
                                colorado
Vandalism
    Colorado Springs. ``Terrorist on Board'' spray painted during night 
on car belonging to Sikh American. ``Terrorist'' also painted on 
driveway. (AP, 9/18)
Threats
    According to University of Colorado police, library pillars spray 
painted with ``Nuke sand nigger'', Arabs go home'' and ``Bomb 
Afghanistan''. (Colorado Daily via uwire, 9/19)
    Aurora. Muslim man heard eight shots fired outside of his home. 
Suspicious of stranger on sidewalk wearing a raincoat and ski mask 
seemingly keeping postmidnight vigil, he called police. (ADC, 9/15)
    Colorado Springs. Four men entered mosque, cursed at a worker, and 
threatened to burn down the building. (Philadelphia Inquirer, 9/13, AP 
Online)
                              connecticut
Assaults
    Bridgeport. Brazilian waiter attacked on street by eight men who 
taunted and accused him being Arab. Waiter's face badly bruised and arm 
broken. (Deutsche PresseAgentur, 9/13)
Vandalism
    Bridgeport. Muslim arriving at mosque for afternoon prayer 9/17 
found phone wires cut and threatening graffiti. (AP, 9/17)
Threats
    Turban-wearing Sikh threatened by second-grade classmate, who said, 
``You better watch out - you're going to get beat up.'' She later 
explained to the principal, ``He looks just like the guys they said did 
it on TV.'' (AP, 9/20)
    Bristol. Man threatened to blow up Arab American-run Subway 
restaurant. (AP, 9/18)
                          district of columbia
Assaults
    Two women wearing Muslim headdress spat at on subway near White 
House. (Plain Dealer, 9/14)
Vandalism
    Rocks thrown against front door and windows of former mosque 
inhabited by Turkish family. Prior, guests leaving the home were 
approached by man asking questions about family. Before walking away, 
said his name was ``Osama bin Laden.'' (ADC, 10/3)
Threats
    Number of threats received by Arab American Institute, including 
death threat to president, bomb threats and hate mail at office.
    Indian American stopped by car with four males who accused him of 
being terrorist and threatened, ``we will bomb you.'' (IACFPA, 9/18)
    Islamic Center received bomb threats; closed as result. (ADC, 9/13) 
Sikh American leaving work accosted by pedestrians yelling verbal 
expletives; threatening to `get' him and bomb him in retaliation for 9/
11 attacks. (IACFPA, 9/17)
Discrimination/Profiling
    DC area. Department store employee subjected to hostile work 
environment. Alleges supervisor said government should restrict 
admission of Arabs and Muslims. `better to prohibit them from living 
here because anyone of them can become a terrorist in waiting, even 
their children'. Supervisor is threatening to fire her (based on bad 
economy. Two other employees of Middle Eastern origin fired over past 
two weeks. (ADC, 9/28)
                                florida
Assaults
    Punta Gorda. Gas station shot at by vandals. (ADC, 9/20)
    Brooksville. A Muslim woman in a car was almost run off road by 
another driver. (St. Petersburg Times, 9/16)
    Herando County. Mosque shot at and vandalized. (St. Petersburg 
Times, 9/14)
    Sunrise. Islamic school principal, driving home with his sister and 
three children chased by men in Jeep. Jeep driver reached behind seat, 
yelling `Where's my gun? Let me take care of them.'' Principal called 
911; when Jeep driver saw cell phone, made abrupt uturn and sped off. 
(Sun Sentinel, 9/19)
    Vandalism
    Jacksonville. Fire that destroyed storage shed in rear of 
restaurant with Middle Eastern name being investigated as arson. 
(Florida Times-Union, 9/27)
    Port Charlotte. Roadside planter, shrubs and plastic sign burned at 
mosque (second vandalism that week). (ADC, 9/19)
    Temple Terrace. ``Muslims F---'' found written on white door of 
family's garage 9/13. (St. Petersburg Times, 9/14)
    St. Petersburg. Palestinian American man's brand new GMC truck 
found 9/12 with threatening note and splattered with paint. (St. 
Petersburg Times, 9/14)
Threats
    Deerfield Beach. Ku Klux Klan cards placed under windshield wiper 
of Egyptian man's car. (Sun Sentinel, 9/19)
Discrimination/Profiling
    Miami. Palestinian American student in care of legal guardian while 
father out of country was taken out of school by guardian concerned 
that father could not return, and was going to send him to relatives 
out of area. When father advised that he could come back, she tried to 
reenroll student, but assistant principal rejected admission. Boy 
finally enrolled; first day back, was badly beaten by classmate urged 
on by father. Student now in night school; feels his presence is too 
provocative. (AAI, 10/5)
    Tampa. Manager of airport hotel service terminated. Although half 
the workforce was laid off for lack of business, he was the only 
manager to lose his job. (ADC, 10/1)
    Fort Lauderdale. Scottish/Lithuanian wife of Egyptian American 
forced to disembark a Southwest Airlines flight while bags and 
documents were once again checked. Her checked bags were removed from 
plane and flight took off without her. Apparently, flags were raised 
because she had traveled to Florida with husband; he returned to 
California (although also pulled off American Airlines flight, airline 
handled situation discreetly and held plane while checking his 
`story'), she was to fly to Connecticut to visit family. (AAI, 10/8)
    Tampa. Egyptian American prevented from boarding United Airlines 
flight to Cairo. As he was entering plane, was called back to ticket 
counter and informed that pilot refused to allow him on flight. Ground 
crew was kind, put him on later flight to make connection to Cairo. 
(Pittsburgh Post-Gazette, 9/21; AAI 10/10) Florida (cont.)
    Orlando. Two Pakistani businessmen forced to disembark US Airways 
plane. Takeoff delayed 45 minutes until security officers and US 
Airways representatives arrived. They requested the men leave because 
the captain did not feel comfortable with them aboard. (ADC, 9/17)
                                georgia
Assaults
    Atlanta. Four men tried to stab a Sudanese man after telling him, 
``You killed our people in New York. We want to kill you tonight.'' 
(Atlanta Journal Constitution, 9/13)
    Gwinnett. Following illegal U-turn, Arab American motorist pulled 
over by police sergeant in patrol car. Motorist alleges sergeant 
approached car while holding gun; ordered motorist out, threatened him, 
called him ``bin Laden supporter'' then searched his car. (ADC, 10/4)
Threats
    Atlanta. On Arab American woman's answering machine: ``We know 
where you are and we can get you.'' (ADC, 9/14)
Discrimination/Profiling
    Savannah. Authorities boarded AirTrans flight to Atlanta and took 
away passenger. Airport officials told Savannah Morning News 
passenger's name similar to that of one on FBI watch list. After 
questioning, passenger was cleared and allowed to depart on later 
flight. (ADC, 9/18)
                                illinois
Assaults
    Evanston. Chicago taxi driver and college student, Mustapha Zemkour 
(who was assumed to be of Arab descent) was injured Monday when two 
menincluding a Cook County corrections officer-chased him on 
motorcycles, then allegedly hit him in the face and yelled, ``This is 
what you get, you mass murderer.'' (Chicago Tribune, 9/18)
    Orland Park. Motorist drove alongside Arab family of four, screamed 
obscenities about the Sept. 11th events and began swerving as if to hit 
the family's vehicle. They were able to pull off to side road, but 
reluctant to report motorist's license plate number in fear of further 
harassment. (ADC, 9/16)
    Chicago. Man attacked gas station attendant he thought was of Arab 
descent with blunt end of 2-foot machete. Attacker arrested and charged 
with hate crime. (Chicago Tribune, 9/13)
    Chicago. Firebomb tossed at Arab American community center. (AP, 9/
13)
    Palos Hills. Two Muslim students beaten at Moraine Valley College. 
Two Arab boys assaulted attackers in defense of the girls. (NIAMC)
    Vandalism
    Chicago. Assyrian church set on fire; estimate $200,000 damage. 
Fire being investigated as arson. (Chicago Tribune, 9/24)
    Chicago. Reports of vandalism. (Chicago Tribune, 9/13)
    Chicago. Arab American living above his place of business awakened 
by smoke coming from first floor. Fire was ignited by something thrown 
into building. Fire department called; police and FBI investigating as 
possible hate crime. (ADC, 9/13)
Threats
    Chicago. Several bomb threats reported. (Chicago Tribune, 9/13)
    Chicago. Man entered Arab American-owned grocery, approached owner 
with bag in his hands, claimed to have bomb and threatened to ``blow up 
this store like you Arabs blew up the World Trade Center.'' Man 
arrested and charged with hate crime, assault and disorderly conduct. 
(ADC, 9/13)
    Chicago. High school crowd chanted threats at passing cars with 
occupants who appeared Arab. (AP Worldstream, 9/13)
    Chicago. While closing office of Arab American Action Network, 
three members threatened by man driving by: ``We're going to make sure 
you guys are going to get yours!'' (AP Online, 9/12)
Harassment
    Chicago. Crowd of young people shouted anti-Arab insults at 
Bridgeview Mosque. (Chicago Tribune, 9/13)
Discrimination/Profiling
    Chicago. Palestinian American medical technician told coworkers not 
comfortable and terminated from position. He had been suspended without 
pay after joking about image of Palestinians celebrating after 9/11 
attacks. (ADC, 9/19)
                                indiana
Assaults
    Fort Wayne. Two men attacked, robbed and cut the penis of an Indian 
man, calling him an Arab and saying, ``to be an American you must be 
circumcised.'' (MSNBC.com 10/1)
    Gary. Assault rifle fired more than 21 shots into Yemen native 
Hassan Awdah's gas station, 9/12. Awdah shielded by thick glass; gunman 
also shot through wall behind which Awdah crouched. No one was injured. 
Investigation turned over to FBI (CNN.com, 9/19)
    Palos Hills. Two Muslim female students beaten at Moraine Valley 
College. Two Arab male students assaulted offenders in defense of the 
women. (ADC, 9/11)
Discrimination/Profiling
    Indiana couple, husband from Pakistan, claims that captain of Delta 
Flight matched their last names, Malik, to list of possible security 
threats and delayed flight until they could be searched. (Evansville 
Courier Press, 10/12)
                                  iowa
Vandalism
    Des Moines. Bottles were thrown and windows smashed at Bosnian bar 
and restaurant, 9/28. Assailants, wielding BB gun, hammers and bat, 
assaulted a woman in parking lot behind bar. Witnesses said assailants 
shouted obscene remarks about Bosnians and Muslims. Police have 
disputed these claims and believe incident was run-of-the-mill bar 
fight that stemmed from earlier conflict among customers. (Des Moines 
Register, 10/6)
    Evansville. Local man rammed his car at 80 miles per hour into 
Islamic Center. (Washington Post, 9/14)
                                 kansas
Assaults
    Topeka. Muslim student was attacked at Washburn University. 
(MSNBC.Com, 10/9)
Threats
    Kansas City. Phone calls urging retaliation against Arabs and 
Muslims led to closing of Palestinian-American restaurant and two 
Islamic schools. (Kansas City Star, 9/13)
                                kentucky
Assaults
    Islamic Meeting Places vandalized and one Indian student attacked 
because he was believed to be an Arab. (AAI, 9/13)
Harassment
    Harrods Hill. Neighborhood sign: ``Arabs are Murderers.'' Man 
refused neighborhood association's request to take it down. Two Arab 
Americans live in neighborhood. (ADC, 9/14)
Discrimination/Profiling On Sept. 21st, in Northern 
        Kentucky, outside Cincinnati, federal agents took the computers 
        and personal papers of more than two dozen Muslims. On Sept. 
        22nd, said they had found nothing of concern. 
        (Cincinnati Enquirer 9/24).
                               louisiana
Vandalism
    Parish of St. Bernard. Islamic school and a number of businesses 
have been repeatedly vandalized. (Times-Picayune 9/18)
    New Orleans. Muslim-owned convenience store vandalized. (ADC, 9/14) 
Louisiana (cont.)
    New Orleans. Windows of mosque shot at with BB gun and neighboring 
Islamic school windows shattered by rocks. Two people arrested. (ADC, 
9/13)
Harassment
    Jefferson Parish. Schools were closed after classmates taunted 
students of Middle Eastern origin. (Washington Post, 9/15)
                                maryland
Attacks
    Belmont. Eyewitness reported Greek convenience store owners, 
believed to be Arab, attacked. Police contacted. (ADC, 9/29)
    Baltimore. Sikh-American pizza deliveryman threatened in parking 
lot of restaurant. Police responded but made no arrests. Attacker 
returned later that day, spraying the Sikh with pepper spray. Coworkers 
tried to restrain, but were also sprayed. Police and ambulance arrived; 
Sikh filed complaint 9/29, but was arrested 10/4 on charges of second 
degree assault (attacker alleged Sikh threatened to kill him). (ADC, 
10/4?)
Vandalism
    Resident found two nails underneath tires of both his and wife's 
cars. His antenna also bent and toothpicks broken in keyhole of his 
mailbox. (ADC, 10/6)
    Arab American woman reported excrement covering door handle of her 
car and long scratch on its side. (ADC, 9/22)
    Germantown. Rear window of minivan smashed while parked in front of 
Arab American home. Family targeted twice previously: while out 
driving, firecracker thrown in front of car. Sixteen (16) year-old 
daughter attacked on Montgomery College campus by group of young 
adults. (ADC, 9/28, 9/21, 9/12)
    Rockville. Rug company owned by Palestinian set on fire. Owner 
reported threatening phone calls 9/ 11. (ADC, 9/ 11)
    Two adjoining buildings owned by a Palestinian burned to ground. 
(Miami Herald, 9/13)
    Burtonsville. Home damaged with graffiti; auto pushed out of 
driveway and hit; causing approximately $5,000 in damages to the car. 
(AAI)
Threats
    Baltimore. Daughter of AAI president received threatening phone 
calls in dorm room at college. (AAI,
Harassment
    Gaithersburg. When Arab American construction worker reported 
constant threats and hostility received at work, supervisor responded 
``Well, don't you think they have a right to be angry?'' Coworker acted 
as if he would attack with metal pipe. (ADC, 10/2)
                             massachusetts
Attacks
    Holden. Police arrested and charged man with assault and battery to 
intimidate for race or religion, simple assault, two counts of assault 
and battery on a police officer, destruction of property and driving to 
endanger. Assailant was stopped at traffic light when he saw Middle 
Eastern looking van driver. He got out of his car, pulled driver out of 
his van, punched and yelled at him, striking several times before 
victim fought back. He then assaulted two police officers and destroyed 
property in police booking room. (Boston Herald/AP, 10/1)
    Fairhaven. Arab American attempting to obtain restraining against 
neighbors. Father hit with baseball bat, ending up in emergency room; 
tires of son's car slashed; followed and harassed with racial slurs, 
such as ``hey you f------Arab terrorist, you bombed the World Trade 
Center.'' (ADC, 9/19)
    Boston. 20-year-old Saudi Arabian Boston University student 
attacked 9/16, by group of men as he left a Back Bay nightclub. Student 
suffered two knife wounds in his arm and third puncture to his back. 
(Boston Herald, 9/18)
    Boston. FBI agents, mistaking her fiance's last name with that of 
Mohammed Atta, dragged veiled Saudi woman down corridor of Westin 
Copley Place Hotel, handcuffed and beat her leaving a 6'' scratch 
across her face. She had accompanied her family on numerous visits to 
Boston for father's medical treatment. Media reports of incident did 
not refer to error or include public apology by FBI. (Boston Globe, 9/
16)
Vandalism
    Laurel. Car belonging to Indian immigrant spray painted with 
``Terrorist murderer"; tires slashed and windshield shattered. Police 
investigating as hate crime. (ADC, 9/19)
    Fall River. Plastic bottle containing chemical hurled at Mobil gas 
station managed by Pakistani man. No one was hurt. (Boston Herald, 9/
14)
    Everett. Softballs inscribed with pro-American slogans including 
``God bless America'' and ' Freedom for all,'' thrown through window of 
cafe owned by a Greek American. Owner believes assailants were aiming 
for nearby Middle Eastern cafe, and missed target. (Boston Globe, 9/13)
    Weymouth. Fire set at gas station owned by Lebanese man (police 
believe a man and a woman doused a pump with gas and set it on fire 
before running away). (Boston Globe, 9/13)
    Plymouth. Pizza shop owned by Iraqi American badly damaged by fire. 
The owner had been receiving threatening calls prior to fire and bullet 
left at front door. (Boston Herald, 9/13)
    Quincy. Two Middle Eastern markets vandalized. (Boston Globe 9/13)
    Somerset. Three teenagers set fire to store they believed to be 
Arab owned (in fact owned by Indian American). Teens arrested and told 
police they wanted to ``get back at the Arabic people for what they did 
to New York.'' (Boston Globe, 9/12)
Harassment
    Cambridge. Muslim Harvard University graduate student wearing hijab 
verbally and physically harassed on way to worship by four white males 
who tried to take off her hijab and reportedly said, ``What are you 
doing here? Go home to your own country'' (Harvard University Wire, 10/
1)
Discrimination
    Boston. On 10/8, Pakistani consultant with U.S. work visa pulled 
off United flight to Washington, DC area. Airline officials had 
identified him as security risk because his name is similar to one on 
FBI list of suspected terrorists. By time he was cleared by officials, 
plane had already departed. (Wall Street Journal, 10/23)
    Boston. Indian-American flying to Los Angeles asked to disembark 
plane by United Airlines flight attendants who explained that passenger 
not comfortable with him on board. United put him on another flight, 
departing four hours later. (NPR, Weekend All Things Considered, 9/17)
    Boston Logan Airport. Various media report passengers pulled off 
three separate flights. Suspicions of flight crews determined to be 
unwarranted in each instance. (Los Angeles Times, 9/16)
    Boston area. Students of Tufts University Egyptian professor walked 
out of class after he entered classroom. (NIAMC)
                                michigan
Assaults
    Lincoln Park. Forty-five (45) year-old Yemeni-American Ali A1 
Mansoop shot 12 times in back and killed, 9/13. Attacker, former 
boyfriend of Mansoop's girlfriend, broke into their home, saying ``I'm 
going to kill you for what happened in New York and DC''. Attacker made 
full confession to police. (ADC, 9/21, WDIV Detroit, ClickonDetroit.Com 
9/21)
    Fair Haven. Windows of Mazen Mislmanion's family service station 
were shot at 9/ 13 . (AP, 9/ 14)
Vandalism
    Detroit Metro Airport. Two Arab Americans claim tickets they had 
placed with personal items in basket to pass through x-ray missing. 
Fear they were confiscated by security. (ADC, 10/2)
    East Lansing. Home of mosque caretaker shot at. Police providing 
protection. (ADC, 9/27)
    Detroit. Arab American-owned store destroyed by arson. Fire 
investigators found gasoline inside store; molotov cocktail, intact and 
unlit, outside building (Detroit News, 9/23)
    Detroit. Windows of Muslim Students Assoc. office at Wayne State 
University broken by vandals. (Detroit News, 9/13)
Threats
    Dearborn. Six bomb threats called in to major businesses. (Detroit 
Free Press, 9/13)
    Dearborn. Super Greenland supermarket owner reported two men in car 
yelled threats and racial slurs at Arab American customers. (Detroit 
News, 9/13)
Harassment
    Dearborn. Female customer at gas station insulted by man driving by 
who yelled, ``Get out of America. Get out of America.'' (ADC, 9/12)
Discrimination
    Detroit. Ahmed Esa, a Yemeni American fired from 16-year welding 
job; told by boss to ``go home, you are Arabic, you are Muslim. Go 
home, pray to your leader, go to your mosque and pray. I don't want to 
see your face.'' Esa is suing. (Detroit Free Press, 10/2)
    Midland. Despite good record with company, Arab American truck 
driver suspended by branch manager for `safety reasons'. When asked if 
suspension had anything to do with the attacks or his religion, manager 
responded affirmatively. (ADC, 10/2)
    Detroit Int'l. Airport. Avis Rent-A-Car employee of Lebanese origin 
terminated after being questioned by FBI for taking two pictures of 
Osama bin Laden from person distributing them at airport shouting `this 
is the terrorist'. (ADC, 9/26)
    Detroit Int'l. Airport. Yemeni American man, waiting for aunt's 
flight to arrive from Yemen, publicly searched by U.S. marshals. 
Officers stopped when satisfied man was `clear'. (ADC, 9/25)
    Detroit Airport. Federal Express employee asked if he is of Arab 
origin by Fedex Security Chief. Employee later suspended without pay, 
then called and asked to report back to work. (ADC, 9/19)
                               minnesota
Assaults
    Eagen. Indian American woman followed out of grocery store by three 
high school age boys. One pushed her against her car; another punched 
her in stomach and elbowed her in the back. As they left, said ``This 
is what you people deserve.'' (Minneapolis Star Tribune, 10/2)
Threats
    Minneapolis. Palestinian-born businessman found mutilated squirrel 
and threatening note in his mailbox. He had also received hate mail at 
his office. (ADC, 10/1)
Discrimination/Profiling
    Four Arab-American men were removed from a Northwest jet and 
questioned by law enforcement after passengers allegedly refused to fly 
with them. (AP, 9/21)
    Minneapolis-St. Paul Int'l. Airport. Three Iraqi natives prevented 
from boarding Northwest flight to Salt Lake City because some of the 
passengers and crew were upset at their presence. NW officials said 
they regretted incident but bound by FAA rules. (ADC, 9/20)
                                missouri
Threats
    St. Louis. Clerks in 7-11 store flooded with telephoned threats 
after caller to local radio station alleged they were celebrating 9/11 
attacks. After making purchase, Red Cross worker threatened to shoot 
them if that was true. (St. Louis Post Dispatch, 9/14)
    Forest Park. Palestinian-American owner of a market contacted 
police after someone entered store and threatened him. (St. Louis 
Dispatch, 9/13)
    St. Louis. Mosque received telephone threats. (St. Louis Dispatch, 
9/13)
                                montana
Discrimination/Profiling
    Highway Patrol officers pulled over caravan of ``Arab-appearing'' 
people with MA license plates after 911 call reported group of 15-20 
people with olive skin driving 5 cars and talking to one another on 
walkie-talkies. When they were pulled over, it was learned that they 
were Puerto Ricans on way to start a church in Oregon. (Missoulian, 9/
14)
                                 nevada
Discrimination/Profiling
    Palestinian American officer at Dept. of Corrections filed 
complaint with EEOC about hostile comments coworkers made about Arabs 
in the U.S. (ADC, 9/14)
                               new jersey
Assaults
    Teaneck. Man hanging U.S. flag on his car approached by woman who 
asked if he was ``Arab''. When he responded ``Yes, why'', she replied 
``Because I was in the department store buying a rope to hang myself 
before you kill me.'' The man ignored her remark and continued hanging 
his flag with his back turned when she assaulted him with her fist and 
keys. He slapped her in the face, and she left. (ADC, 9/19)
    Muslim attendant at a service station punched in face by a 
motorist. (AP State and Local Wire, 9/13)
    Vandalism
    Molotov cocktail thrown at a Hindu temple. (AP State and Local 
Wire, 9/13)
    Garbage and stones thrown at car owned by Sikh. (AP Worldstream, 9/
13)
    Two businesses owned by Indians were spray-painted with the words 
``Leave Now [expletive].'' (Philadelphia Inquirer, 9/13)
    Portuguese American wife of Syrian reported car vandalized. (ADC, 
9/22) (ADC, 9/22)
    Collingswood. Vandals spray painted ``leave town` on walls of two 
Indian-owned businesses. (www.hatewatch.org, 9/12)
Threats
    West Babylon.Man arrested and charged with possessing homemade 
metal pipe bomb and other explosive material. He showed pipe bomb to 
friends, saying he `planned to use the bomb to get an Arab''. Friends 
took the pipe bomb and called police. (Bergen County Record, 9/17)
    Carload of people drove by Arab neighborhood yelling ``We're going 
to bomb you when you sleep!'' (AP State and Local Wire, 9/13)
Harassment
    Turkish woman wearing Islamic head scarf verbally abused by woman 
who leaned out of her car and cursed at her. (AP State and Local Wire, 
9/13)
Discrimination/Profiling
    A number of Pakistani immigrants reporting detainment and harsh 
treatment at the hands of FBI agents. (Washington Post, 10/3).
                                new york
Assaults
    Bronx. Yemeni man working at newsstand hit on head with bottle by 
three men who dragged him to street, allegedly yelling, ``You Arabs get 
out of my neighborhood. We hate Arabs! This is a war!'' (Daily News, 9/
30)
    Manhattan. Two drivers assaulted and suffered minor injuries. (New 
York Times, 9/24)
    Long Island. Police charge man with bias crime after he assaulted 
gas station attendant whose ethnic background he questioned. (New York 
Post, 9/19)
    Buffalo. On 9/16, Arab-American man assaulted by teenage employee 
at the Tops Market on Broadway. Police charged Brian K. Marshall, 18, 
with second degree assault as a hate crime and aggravated harassment 
after the victim told police Marshall pushed a steel restroom door with 
both hands into his head. The victim, who briefly lost consciousness, 
said Marshall called him an ``Arab terrorist,'' and that when he left 
the restroom, several employees and his alleged assailant laughed at 
him and refused to offer him aid. (Buffalo News 9/18)
    Stony Brook. Shots fired at home of Indian-American Stanford 
University graduate. (San Jose Mercury News, 9/18)
    Albany. Two college students hit in face, apparently because of 
their Middle Eastern heritage. (New York Times, 9/15)
    New York. Intoxicated 75-year old man tried to run over Pakistani 
woman in parking lot of shopping mall; followed her into a store and 
threatened to kill her for ``destroying my country.'' (AP Worldstream, 
9/13)
    Staten Island. Arab American soccer player for College men's team 
nearly run down by car. (Daily News, 9/13)
    Suffolk County. Man arrested for allegedly making anti-Arab threat 
and pointing pistol at gas station employee. (San Francisco Chronicle, 
9/13)
    Manhattan. Sikh man pounced on by three white men yelling 
``terrorist.'' (New York Times, 9/12)
    Ronkonkoma. Man arrested after waving pellet gun and shouting 
ethnic slurs at gas station attendant. (Newsday, 9/12)
    Ardsley. When Arab American deli owner responded affirmatively to 
customer's asking if he was Arab, customer cursed and yelled at him. As 
deli owner attempted to escort him out of store, customer sprayed him 
with pepper spray. (ADC, 9/11)
    Richmond Hills. Indian American attacked with baseball bat; 
hospitalized with severe injuries. (IACFPA, 9/18)
Vandalism
    Bronx. Over past two weeks two medallion taxis belonging to Muslim 
drivers set on fire. (New York Times 9/24)
    Bensonhurst. Nine parked livery cars and taxis vandalized. (60 to 
75 percent of the city's medallion-cab drivers are of Arab, South Asian 
or North African descent.) (New York Times 9/24)
    Buffalo. On 9/22, passing bicyclist smashed two windows of Arab-run 
convenience store. (Buffalo News 9/24) New York (cont.)
    Manhattan. Six to eight men harassed and threw rocks at 36 year old 
Arab American. (New York Post, 9/19)
    Manhattan. Stones thrown through windshields of cabs in Central 
Park, apparently targeting dark-skinned drivers. (Time, 9/18)
    Washington Heights. Thirty-five (35) year-old man complained to 
police that a man spit in his face and made anti-Arab remarks. (Daily 
News, 9/17)
    Manhattan. When Muslim American reported to two patrol officers 
that he was spat upon and harassed, the officers allegedly responded 
``(your) people should have known about this before ... (you) deserve 
everything (you) get.'' (ADC, 9/17)
    Brooklyn. Motorist blocked path of cab driver that appeared to be 
of Middle Eastern descent. Motorist pounded on car shouting, ``Get out 
of the car, Arab. You are going to die, you Muslim.'' (Daily News, 9/
14)
    Nesconset. Grocery owned by Pakistani American target of apparent 
arson. (Newsday, 9/ 11)
Threats
    Manhattan. Staples employee harassed Arab American customer about 
his accent and threatened to cut his throat. Police were called and 
report filed. (ADC, 10/1)
    Rochester. Contractor received daily threats and verbal assaults by 
coworkers since 9/1 l; include ``Let's kill all the Arabs we find 
here"; ``We're going to kill you and send you back where you belong'' 
.... (ADC, 10/1)
    North Patchogue. Sign on fire department vehicle, driven by senior 
NPFD official: ``Let's kill all the ragtops and turbanheads. Let God 
sort it out.'' (ADC, 9/26)
    Manhattan. Message on television station answering machine: ``F----
--Arabs, I know where you live and I'm going to murder you. . . get out 
of my f--------country.'' (ADC, 9/23)
    Bronx. Threatening, expletive filled messages including ``you 
better watch your back, Muslim'' left on Muslim Center voice mail 
throughout week. (ADC, 9/19)
    Queens. Jordanian newsstand worker reported man threatened to kill 
him. (Daily News, 9/17)
    Brooklyn. Arab American grocer subjected to racial slurs and 
threats after grocer attempted to pay delivery bill. The grocer was 
then told to call main office where manager made racist remarks. 
Incident reported to police. (ADC, 9/13)
    Brooklyn. Woman picking up son from school threatened by `older 
Caucasian man'. (CAIR, 9/ 11) New York (cont.)
    Hicksville. Sikh man chased him as- he fled home. (Newsday, 9/11)
Vandalism
    Queens. Anti-religious graffiti scrawled on sides of Bangladeshi 
newspaper office. (New York Post, 9/19)
    Manhattan. Threatening letters sent to upper east side residents 
who may be of Arab descent. (New York Post, 9/19)
    Buffalo. Vehicle belonging to Arab American torched. Police and 
fire officials investigating. (Buffalo News, 9/17)
    New York City. ``Don't support terrorists'' spray painted on awning 
of Afghanistan-owned `Chickens `R Us' restaurant. (Daily News, 9/17)
    Brooklyn. Palestinian American head of Arab American Family Service 
Center received several threatening calls, one saying, ``you should all 
die for what you've done to my country.'' (XINHUA, 9/12)
Harassment
    Manhattan. Priority mail package containing dried pig's ear and 
remarks of bin Laden delivered to Afghan Mission. (New York Post, 9/19)
Discrimination/Profiling
    Manhattan. Permanent resident from Moroccan received no mail for 
some time since 9/11. When mail finally delivered, believes did not get 
all bank and credit card statements; contacted credit card companies to 
cancel account and issue new card with different address. Fears 
retribution if files complaint; is considering moving. (AAI, 10/10)
    Manhattan. Man detained in New York. After 20 days, authorities 
would still not allow family to see him; did allow lawyer visit. 
Hearings scheduled three times; cancelled three times by FBI. (AAI, 10/
10)
    Rochester. Turkish man contacted EEOC after expected job offer was 
rescinded. Was told by company, ``We decided we don' need you here.'' 
(ADC, 9/28)
    Manhattan. Pakistani American computer analyst for Henry 
Electronics on one week assignment at NY Transit Authority. NYTA 
supervisor saw picture of man's wife with WTC buildings in background 
on laptop and said, ``Oh boy, you're in real trouble.'' Short while 
later, supervisor told Pakistani he did not want him to work there; he 
was then also terminated from Henry Electronics. (ADC, 9/21)
    Island Park. Muslim woman fired from part-time job at laundry. Had 
been there three years; boss said he didn't know she was Muslim. 
Although the woman claims he is afraid of her and she is `loved' by the 
customers; he alleged they threatened to boycott store after hearing 
her say, ``America had it coming'' while watching destruction of World 
Trade Center on television. (Newhouse News, 10/17)
                             north carolina
Assaults
    Greensboro. University of North Carolina Lebanese student attacked 
and taunted by two men who told him to ``Go home, terrorist.'' They hit 
him with their fists, twisted his arm and broke his glasses. (MSNBC.Com 
9/19)
    Vandalism
    Charlotte. On 9/25, Arab American-run restaurant
    Charlotte. On 9/25, Persian rug store vandalized with anti-Arab 
epithets, swastika, and the letters KKK. (Charlotte Observer, )
    Charlotte. Windows broken and containers filled with gasoline left 
at Persian rug store. Police investigating whether attack is hate 
crime. (AP, 9/18)
                                  ohio
Threats
    Outside Cleveland. Two men posing as salesmen asked Arab American 
businessman if he was from Afghanistan, threatening to kick him if he 
was. The men were arrested. (ADC, 10/3)
    Vandalism
    Cortland. Fire set to hedge outside Indian American-owned gas 
station. (www.hatewatch.org; 9/19)
    Suburban Cleveland. Guru Gobind Singh Sikh Temple attacked with lit 
bottles of gasoline. (New York Times, 9/18)
    On 9/17 a 29-year-old man smashed his car through the entrance of 
an unoccupied Ohio mosque at 80 mph., landing in a fountain. (Chicago 
Tribune, 9/18)
    Cleveland. Ford Mustang driven through entrance of Ohio's largest 
mosque. Mosque unoccupied at time; only driver injured. (Estimated 
damages: $100,000) (AP, 9/13)
Discrimination/Profiling
    Cleveland Int'l. Airport. Pakistani American reported that hours 
after passing intense security, he was singled out by police officers 
who scanned his bag twice with x-ray machine just before he was to 
board his flight. (ADC, 9/22)
                                oklahoma
Assaults
    Tulsa. Police investigated attack on food store employee jumped by 
three people while leaving his apartment. He was knocked down, eyes 
covered and beaten. The men further threatened to ``cut you like you 
cut our people.'' (Tulsa World,9/14)
    Tulsa. Police classified beating of Pakistani native by three men 
outside of service station as hate crime. Victim hospitalized. (Tulsa 
World, 9/11)
Threats
    Waurika. Fire broke out on roof of truck stop owned by Sikh after 
caller repeatedly threatened he wants to ``kill all you Muslims'' and 
``kill everyone up there who's not white.'' Closed circuit videotape 
showed man in pickup threw something onto roof before fire. (Fort Worth 
Star Telegram, 10/2)
Harassment
    Oklahoma City. Motorists made obscene gestures outside Islamic 
Society building. (AP Worldstream, 9/13)
                                 oregon
Assaults
    Eugene. California woman arrested after attempting to pull turban 
off head of Sikh man she believed he was an Islamic extremist.
Vandalism
    Vancouver. Muslim family new to neighborhood reported to Sheriff's 
office that `murder' had been spray painted on their driveway. 
(Oregonian, 9/15)
    Portland. While shopping at Target, tires of Pakistani man's car 
slashed. Police investigating as possible hate crime. (Oregonian, 9/19)
    Gladstone. Woman reported racial slur against Arabs painted on 
street in front of her house. (Oregonian, 9/12)
Threats
    Eugene. 33-year-old man arrested after making threatening phone 
call to Islamic Cultural Center. (New York Times, 9/18)
    Portland. Customers threatened to blow up store and homeland of 
Iraqi convenience store clerk. In fear, the clerk closed store early. 
(Oregonian, 9/14)
                              pennsylvania
Assaults
    Philadelphia. Off-duty police officer pulled gun on Pakistani 
convenience store owner. (Philadelphia Daily News, 9/13)
    Philadelphia. Foreign-looking taxi drivers threatened. 
(Philadelphia Daily News, 9/13)
    Philadelphia. Muslim cab driver reported to police passenger broke 
his arm when he eached back to receive fare. (Plain Dealer, 9/13)
    Meadville. Female high school student of Middle Eastern descent 
attacked by man with knife, who yelled at her, ``You're not an 
American. You don't belong here!'' He was arrested and is currently in 
jail. (Pittsburgh Post Gazette, 9/18)
Threats
    Threats made to Muslim and Arab students. (Morning Call, 9/15)
Harassment
    Allentown. Harassing voice mail and e-mail that caused the 
Allentown mosque to cancel its services this week. (Morning Call, 9/15)
    Lehigh Valley. Muslim Association leaders reported prank telephone 
call and a carload of people shouted derogatory words at congregation 
members leaving the mosque. (Morning Call, 9/15)
    Exeter. Ten pigs' heads left outside mosque. (Press Association, 9/
13)
Discrimination/Profiling
    Philadelphia. Mentally and physically disabled Lebanese American 
girl mistreated at school; officials `unyielding'. Father hired lawyer 
to file complaint against school system. AAl providing resources. (AAI, 
10/10)
    Philadelphia. Arab American teacher at Christian school told by 
principal that he was being replaced and they do not want him to 
return. When teacher asked for reason, principal stated ``...because 
you're Arab.'' (ADC, 9/13)
                              rhode island
Assaults
    On 9/16, pregnant Muslim woman wearing shawl was using payphone 
when car pulled up behind her and someone in the car threw rock, 
hitting her foot. She turned to see what was happening when the 
passenger, a young woman of around 20, threw another rock and missed. 
(ADC, 9/16)
    State fire investigators detonated explosive device left at gas 
station owned by Lebanese Americans. Police investigating as possible 
hate crime. (Providence Journal Bulletin, 9/18)
    Three teenagers arrested for throwing molotov cocktail on roof of 
convenience store. Told police they wanted to ``get those Arabs for 
what they did to us.'' (AAI, 9/13)
Vandalism
    Pawtucket. Anti-Arab epithet spray-painted on garage door of 
gasoline station owned by a Lebanese-American. (Providence Journal, 9/
18)
    Cranston. Pakistani-owned convenience store vandalized. (MSNBC.Com, 
9/14)
Discrimination/Profiling
    Providence. Police forced Sikh telecommunications consultant and 
ten others off Amtrak train and questioned them for two hours. 
Consultant charged with possession of concealed weapon: three-inch 
knife traditionally carried by Sikh men. (ABC, CNN)
                             south carolina
Vandalism
    Charleston. Vandals broke window of minivan belonging o man of 
Middle Eastern descent. (Post and Courier, 9/15)
                               tennessee
Assaults
    Memphis. Muslim woman badly beaten on way to worship. (Dallas 
Morning News, 9/16)
Threats
    Waverly. Two Arab American clinicians received threatening phone 
calls telling them to ``go home and get out of our country"; their 
daughter in Atlanta also received threatening calls. (ADC, 9/12)
                                 texas
Assaults
    Iraqi man shot in leg after struggle with assailant, described as 
African-American, greeted man in Arabic and then pulled out a gun. 
Police are investigating as possible hate crime. (MSNBC.Com, 9/26)
    Houston. Man of Middle Eastern ancestry wounded by gunman. Attacker 
approached victim as he was getting out of his car, asked for 
cigarette, then held handgun to victim's head, cursed and accused him 
of having blown up the country and killing his family and friends. 
Victim grabbed gun and was shot in left hip. Attacker fled scene on 
foot. (AP, 9/21)
    North Texas. Shots were fired at Pakistani home. No one was 
injured. (MSNBC.Com, 9/24)
    Fort Worth. While visiting Botanic Gardens, two Ethiopian men were 
stabbed by white man who apparently approached them and, without saying 
a word, stabbed each one before fleeing. The two men were hospitalized. 
(Fort Worth Star Telegram, 9/22)
    Dallas. Pakistani grocer in shot and killed 9/15. (LA Times, 9/18)
    San Antonio. Three bullets struck Sahara Grocery. (ADC, 9/11)
    San Antonio. Shiraz Iranian Restaurant attacked. (ADC, 9/11)
Vandalism
    Austin. Carpet store owned by Palestinian American destroyed by 
fire. (American Statesman, 9/23)
    Carrollton. Window at Islamic Center of broken by slingshot. (LA 
Times, 9/18)
    Houston. Auto mechanic shop owned by Pakistani torched in early 
morning fire. No one was injured. Son of owner received threats a few 
days prior. Federal law enforcement agents and Houston Fire Department 
arson unit investigating. (Houston Chronicle, 9/17)
    Austin. Incendiary devices thrown onto roof of Nation of Islam 
mosque. (ADC, 9/ 17)
    Irving. Six bullets shattered windows of Islamic Center. (AP 
Worldstream, 9/13)
    Denton. Islamic Society fire bombed. (Dallas Morning News, 9/13)
    Professor of Middle Eastern language and cultures at University of 
Texas spat on by passerby. (ADC, 9/11)
Threats
    North Texas. Two death threats prompted Pakistani-American to shut 
down his gas station. (AP, 10/9)
    Austin. Arab American realtor received phone threats, ordering him 
to ``leave this country or else!'' (ADC, 9/13)
Harassment
    San Antonio. Two Muslim girls verbally abused in high school. (ADC, 
9/11)
Discrimination/Profiling
    Houston. Palestinian anesthesiologist at Baylor College of Medicine 
was assisting three physicians during surgery, when one began to 
complain about Islam and Palestinians. When the anesthesiologist told 
him he is Palestinian, an argument ensued, and the physician ordered 
him out of the operating room. Physician's behavior reported to in-
charge nurse and hospital vice president by nurse and doctor who were 
present. (ADC, 9/26)
    San Antonio. Ashraf Khan, a 32-year-old Pakistani businessman, 
removed from Delta Airlines flight after the flight crew said they did 
not feel comfortable with him aboard. (Los Angeles Times, 9/20; St. 
Petersburg Times, 9/17)
    Palestinian woman sent home by boss, who said he didn't know if she 
would be celebrating death of Americans in the office. (ADC, 9/12)
                                  utah
Vandalism
    Salt Lake City. 31-year-old man doused Pakistani-owned Curry in a 
Hurry restaurant with gasoline and ignited it, 9/13. (Associated Press, 
9/27; Salt Lake Tribune, 9/13)
                                virginia
Assaults
    Roanoke. Arab American family suffered series of incidents: mother 
blocked from entering her apartment by group of young men; fist-sized 
rocks thrown through twoyear old daughter's open bedroom window; their 
two cars scratched and dented; mother again prevented from entering and 
hit with baseball; rocks again thrown through windows almost hitting 
daughter. (ADC, 9/30)
    Falls Church. Muslim hit in head with baseball bat near Dar Al 
Hijra mosque. (ADC, 9/28)
    Fairfax County. On 9/23, white male pulled to stop light ahead of 
Middle Eastern person, got out of vehicle and approached Middle 
Easterner with hammer, yelling, ``You guys blew up the Trade Center. 
You m------ f------'', and spit on victim's hood. (Fairfax County 
Police Report, 10/10)
    Fairfax. On 9/19, teenagers playing basketball harassed; one hit in 
stomach and face. (Washington Post 9/21; Fairfax County Police Report, 
10/10)
    Alexandria. Afghan American approached by passerby who asked his 
ethnicity. When Afghan replied affirmatively, passerby screamed, ``I'm 
going to kill you'' before assaulting him. (CBS, 9/16)
    Falls Church. On 9/14, Afghan American assaulted after verbal 
altercation in a parking lot. (Washington Post 9/18)
    Fairfax County. On 9/11, intoxicated man entered Chinese 
restaurant, punched patron in back of head; yelled at staff about being 
foreigners, should not be in this country and referred attacks. 
(Fairfax County Police Report, 10/10)
    Fairfax County. On 9/11, man asked woman where she was from, said 
`I'm gonna show you where I'm from', returned with gun, stated he 
wouldn't be afraid to use it, pointed it at woman and told her to go 
back to her country. (Fairfax County Police Report, 10/10)
Vandalism
    Fairfax County. On 9/30, mailbox smashed; drive-byes yelled `why 
are you here; go back to where you came from.'' (Fairfax County Police 
Report, 10/10)
    Springfield. On 9/29, vehicle parked at mall, `keyed' with ``F--- 
Palestine Terrorists'' and strewn with garbage and U.S. postage stamp. 
(Fairfax County Police Report, 10/10)
    Home of Vietnamese woman and husband of Arab origin and found 
epithets written in yard. (AA1, 10/10)
    Fairfax. Large swastika burned into lawn of Middle Eastern family's 
home. (ADC, 9/28)
    Fairfax County. On 9/28, vehicle rammed by driver who said `go back 
to your country you foreigner.'' (Fairfax County Police Report, 10/10)
    Fairfax County. On 9/16, Pakistani-owned store trashed by suspects 
making statements, ``You are terrorists. You support Osama bin Laden. 
This is our country, not yours.'' (Fairfax County Police Report, 10/10)
    Fairfax County. ``F------Arab'' scratched on vehicle hood and 
headlights broken, 9/16. (Fairfax County Police Report, 10/10)
    Fairfax County. Graffiti in boys' restroom at Oakton High School, 
9/14: ``Towel Heads got 2 Options 1) Go F------- Home 2) Hit the 
Curb.'' (Fairfax County Police Report, 10/10)
    Officials at two mosques reported vandalism and threatening calls. 
(Washington Post, 9/13)
    1Old Town Alexandria. Islamic bookstore vandalized. Owner fond two 
bricks on premises with notes that said, ``You come to this country and 
kill. You must die as well.'' And ``Arab murderers.'' (Washington Post, 
9/13)
    Fairfax County. On 9/13 student found note, stating ``Die you 
stupid halfPakistani...Burn in Hell Die!'' (Fairfax County Police 
Report, 10/10)
    Fairfax County. Sign indicating site as future home of Muslim 
society vandalized and attempt made to set it on fire, 9/14. ``F--- the 
Arabs'' written on sign. (Fairfax County Police Report, 10/10)
    Fairfax County. ``F--- Arabs written on door of home. (Fairfax 
County Police Report, 10/10)
    Fairfax County. Anti-Arab and anti-Jewish statements spray painted 
on walking tunnels, 9/13. (Fairfax County Police Report, 10/10)
    Fairfax County. ``F--- Islam'' and ``F--- Arabs spray painted on 
property, 9/12. (Fairfax County Police Report, 10/10)
Threats
    Resident reported threatening phone call. Caller first mocked his 
name, asked to speak with wife, and then said, ``You're all going to 
die.'' (ADC 10/3)
    Fairfax County. Madina Afghan Kabob restaurant received threatening 
phone calls 9/14 warning family to go back to Afghanistan or they would 
be killed. (Fairfax County Police Report, 10/10)
    Fairfax County. On 9/23, note found on windshield: ``Muslim 
children are hell bound"; on daughter's bike: ``Muslims must die!'' 
(Fairfax County Police Report, 10/10)
    Fairfax County. Washington Islamic Academy received letter, 9/18, 
stating all Muslims should be shot and killed and are evil; on 9/12, 
received nasty phone calls; people driving by yelling and making 
obscene gestures. (Fairfax County Police Report, 10/10)
    James County. Woman arrested for threatening to bomb mosque. 
Coworker contacted police after woman emailed her ``. . .I am making 
plans to bomb the mosque in Hampton.'' (Daily Press, 9/13)
    Hampton. Police investigating phone threat received by Islamic 
Center and mosque. Male voice threatened ``prepare to die.'' (Daily 
Press, 9/13)
Harassment
    Fairfax County. Arab female stopped at traffic light 9/22, white 
male in another vehicle yelled ``You are not wanted here you animals! 
Go blow up another building.'' (Fairfax County Police Report, 10/10)
    Charlottesville. Arab American physician verbally assaulted by 
neighbor. (ADC, 19/17)
    Sterling. Members of Islamic community arriving at Red Cross Center 
to donate blood found hallway painted with ``Die pigs.'' And `Muslims 
Burn Forever.'' (XINHUA, 9/12)
    Fairfax County. On 9/11, several white males in front of K-Mart 
asking people to sign petition to support America, displayed banner 
with anti-Islamic sentiments, shouted at people who appeared to be of 
Middle Eastern descent. (Fairfax County Police Report, 10/10)
    Manassas. Hate messages left on answering machine of mosque (AP 
Worldstream, 9/13)
Discrimination/Profiling
    Ashburn. Egyptian American fired from Wal-Mart. Called into office 
at store and questioned by FBI in early October. Coworkers 
uncomfortable working with him. FBI and Wal-Mart would not comment. 
(Newhouse News, 10/17)
    Woodbridge. Three-year old boy of half-Arab origin dismissed from 
day care. Mother enrolled him in another center, to receive call from 
assistant director withdrawing admission after having conversation with 
former director. Mother alleges decision based on ethnicity; not, as 
director stated, discipline problem. (ADC, 10/2)
    Falls Church. Egyptian American and coworker fired from tax revenue 
office after reporting anti-Arab slur made by their boss to an attorney 
and city manager. Apparently, after hearing news that suspect connected 
with 9/11 attacks had been detained, the boss allegedly joked, ``Did he 
have a rag on his head?'' In termination letters to the two men, the 
boss claimed they had ``challenged my integrity, impeding my authority 
to operate this office. Your action is harassment and a breach of trust 
in our relationship.'' (ADC, 9/24)
    Manassas. Although their children often played in front of their 
homes, neighbors contacted Social Services when Algerian children were 
seen outside unsupervised. (ADC, 9/24)
    Dulles. United Airlines flight to London delayed four hours after 
Saudi pilot sought to fly in cockpit. United pilot refused and returned 
to gate. Saudi pilot and two other men detained and questioned by FBI 
and INS for three hours. FBI field office spokesman said `their story 
check out. . .they were sent on their way.'' (Pittsburgh Post Gazette9/
21)
    K-Mart closing manager demoted to hourly-basis employee. Employee 
suspects demotion because of his national origin and 9/11 attacks; does 
job well and never been written up. (ADC, 9/17)
                               washington
Assaults
    Snohomish. Man indicted by a federal grand jury on hate-crime 
charges for allegedly pouring gasoline over a man's vehicle and then 
firing a handgun at two people leaving the Idriss Mosque on 9/13. 
(Seattle Times, 9/27)
    SeaTac. Sikh taxi driver assaulted by man he picked up at bar. 
Suspect asked driver if he was a terrorist. Then he choked the cabby, 
punched him in the face, pulled out part of his beard and knocked the 
turban off his head. (MSNBC.Com, 9/15)
    Seattle. Three white men attacked a Somali woman with a knife 9/16 
in a grocery parking lot. (Seattle Times, 9/14)
    Seattle. 53-year-old man charged with first-degree assault and 
attempted arson after dousing car at Islamic Idriss Mosque with 
gasoline. When confronted by car owner, he tried to fire at him, 
`squeezing a shot into the ground'. The man then drove his own car into 
a telephone pole. (Seattle Post Intelligencer, 9/13)
    Snohomish. Man accused of spitting at Middle Eastern woman picking 
up her children at elementary school, arrested. (Seattle Times, 9/14)
    Prison fights broke out over Muslim slurs. (AP Worldstream, 9/13)
    Seattle. Suspect arrested for suspicion of malicious harassment. 
Allegedly threatened to burn down mosque and walked into mosque wearing 
his shoes. When asked to leave, pushed mosque leader in chest. (Seattle 
Post-Intelligencer, 9/11)
Vandalism
    Lynwood. Dar Alarqam Mosque defaced with black paint. The mosque 
also received a flood of hate calls. (MSNBC.Com 9/24)
    Tacoma. A small arson fire damaged synagogue Sunday in what police 
termed a hate crime. (Seattle Post-Intelligencer, 9/24);
    Edmonds. Iranian-owned grocery vandalized. (Seattle Times, 9/18) A 
Kenmore man is in jail awaiting charges for allegedly pouring gasoline 
on a Northgate mosque and firing a gun when employees there tried to 
stop him. (Seattle Times, 9/18)
Threats
    Vancouver. Man arrested after leaving messages on local Islamic 
school's voice mail; mosques, other schools and cultural centers 
threatening to blow them up in retaliation for Sept. 11 attacks. 
(Vancouver Sun, 10/5)
    Seattle. Man charged with malicious harassment for threatening to 
burn down mosque. (Seattle Times, 9/18)
    Seattle. Two men threatened East African home improvement store 
employee. (AAI, 9/16)
    Seattle. Man stormed into mosque, threatening to burn it down. 
(Seattle Times, 9/ 16)
    Spokane. Threats made at two gas stations owned by Arab Americans. 
(The Hotline, 9/13)
    Seattle. Sign hung from footbridge: ``Death to all Palestinians.'' 
Sign later removed (Seattle Post Intelligencer, 9/11)
    Seattle. Police report local mosques received not only abusive 
calls but also several death threats, including `we will kill you like 
sheep'. (Seattle Post Intelligencer, 9/11)
    Taxicab dispatcher received calls threatening company to ``tell 
your Muslim drivers not to drive today'', among other threats. (Seattle 
Times,9/11)
Discrimination/Profiling
    Seattle. 12 year American Airlines employee escorted off AA flight 
to Dallas with another passenger of Arab origin. They were informed 
``pilot does not feel safe with you guys on board and we have notified 
the FBI to come here and question you.'' Interrogation and background 
check performed by three Seattle police officers, after which they were 
permitted to board a later AA flight to Dallas. Apologetic stewardess 
later informed them that pilot of second flight was asked by FBI agent 
if he feels comfortable flying with ``two Middle Eastern men.'' (ADC, 
9/26)
                               wisconsin
Threats
    Beloit. On 9/29, Jordanian man reported that threat to blow up his 
store if he did not leave the country in 24 hours. Forty-four-year-old 
man arrested and charged with conveying `false bomb threat,' making 
threatening phone call and probation violations. All charges filed as 
hate crimes. (MSNBC.Com, 10/9)
                                wyoming
Threats
    Laramie. American-born Muslim woman and her children chased from 
Wal Mart by angry shoppers yelling for her ``to go back to her 
country.'' (Associated Press, 9/11)

                                

    Article by Ali Ayub, Washington Post Company, December 3, 2001, 
                             Washington, DC

                            Whose Sacrifice?
    American citizens are willing to sacrifice civil liberties in the 
fight against terrorism [front page, Nov. 29], but which Americans are 
doing the sacrificing?
    Since Sept. 11 the FBI has interviewed me at work and at home 
because my name is similar not to that of one of the hijackers, but to 
an individual arrested with suspected links to the terrorists.
    The FBI has contacted my broker, my neighbors and my friends to 
learn more about me. I was purchasing an apartment, but when I needed 
to give my down payment at closing I was informed by my bank that my 
accounts were frozen. No one informed me nor could anyone help me 
resolve the problem. Only an angry settlement attorney was able to 
unfreeze the funds.
    A month passed, and all seemed normal. Then I found out again that 
I did not have access to transfer funds from my accounts without 
government approval.
    I am a federal employee. I have not been charged with a crime. I do 
not support terrorism, and I was willing to help the law enforcement 
agencies. It was my duty as an American to answer all the questions 
asked of me.
    But as time goes by and I have to get ``clearance'' every time I 
want to make a bank transfer, I feel victimized. Every time I travel 
and receive the extra security checks because of my name it makes me 
trust my government less. What scares me even more is that I am an 
American citizen, and that is why I am not in jail. If I were not a 
citizen I could be one of the hundreds of detainees, or I could be in 
sitting in front of a secret military court only because the crime I am 
guilty of is that my name is Ali Ayub and not Joe Smith.

                                

                           Bar Association of San Francisco
                               San Francisco, CA 94104-1826
                                                  November 28, 2001
    Dear Senator Leahy, Senator Feinstein and Other Members of the 
Judiciary Committee:
    The Bar Association of San Francisco (BASF), one of the largest 
metropolitan bars in the nation with some 9,500 members, strongly 
supports the present effort by the United States to eradicate 
international terrorism. We see that effort as part of our nation's 
continuing commitment to the rule of law and to the proton of human 
rights around the world. It is thus critical that our war on terrorism. 
be conducted in accordance with the United States Constitution at home 
and with international legal norms abroad. We hate a special leadership 
role in influencing and upholding the legal customs that nations follow 
in times of crisis. Our country's fair treatment of those accused of 
wrongdoing, however heinous, has been and must remain a mainstay of its 
human rights policy, for only rigid adherence by the United States to 
standards of due process can render credible our insistence that 
individuals throughout the world be protected from governmental abuse. 
If we do not uphold these standards, we put at risk the moral authority 
that we will surely need in order to bring the current crisis to a 
swift and successful conclusion.
    For this reason, we are gravely concerned by the issuance on 
November 13th of the President's Military Order on ``Me 
Detention, Treatment, and Trial of Certain Non-Citizens In The War 
Against Terrorism,'' (``The Order '') While the intended reach of that 
order remains uncertain, it clearly attempts to constrict by executive 
decree the protections of the Fourth, Fifth and Sixth Amendments now 
available to foreign nationals taken into custody on American soil. The 
Order pests the unlimited detention without trial or access to courts 
or counsel of foreign nationals, including those who are longtime legal 
residents of the United Sues or who have otherwise entered and remained 
hem in accordance with the law. (Sec. 3) It further permits that such 
nationals be tried and subjected to life imprisonment or death in 
proceedings before military commissions at which ``the of law and the 
rules of evidence generally recognized principles in the trial of 
criminal cases in the United States district courts'' would not apply, 
(Sec. 1 (f)).
    The ``principles of law'' which ``it is not practicable to apply in 
military commissions'' include constitutional guarantees to trial by 
jury, to be defended by counsel of the defendant's choice, to confront 
adverse witnesses and evidence, to be convicted only on proof beyond a 
reasonable doubt and a unanimous jury verdict, to a public proceeding, 
and to be free from the ex post facto application of laws. (Compare 
Sec. 4). The Order declares that those whom the President determines 
shall be subject to its application art; barred from seeking any form 
of judicial review or remedy. (Sec. 7(b)(2)). In a separate rule-making 
proceeding, the Attorney General is seeking authorization to Surveil 
communications presently protected by the attorney-client privilege.
    BASF opposes these limitations on constitutional rights as imposed 
by the Order. The federal courts have proven fully capable of 
administering justice in cases involving international terrorism. 
Pointedly, federal courts in New York have recently twice efficiently 
and with full regard for due process conducted. trials of those accused 
of acts of terror on American soil. Free of improper lawyer behavior, 
governed by strong judges, the traditional vehicle of due process--
juries following sound rules of evidence and law-rendered verdicts of 
guilty in these cases. Appellate review by Article Three judges will 
assure the accuracy and fairness of those judgments.
    Furthermore, the Order presents serious obstacles to the 
cooperation with our allies in the war on terrorism that will be 
required for success in that struggle. Only last week, Spain announced 
that it would not extradite to the United States eight suspected 
members of Al Qaida accused of involvement in the horrific crimes of 
September 11th absent assurances that these defendants would 
be tried in civilian tribunals. Spain's abhorrence of military 
tribunals wielding the power of the death penalty, arising from its own 
experience with dictatorship prior to 1973, is shared by all members of 
the Council of Europe, including France, Germany, England, and Italy, 
all of whom are presently assisting in the hunt for those responsible 
for the death of thousands in New York, Washington, and Pennsylvania. 
The United States cannot afford to divorce itself from these close 
friends, many of whom modeled their own due process standards on those 
contained in our Bib of Rights.
    Historic analogy to the Lincoln Assassination trial and the 
prosecution of invading saboteurs during World War II is inappropriate. 
Both occurred under constitutionally mandated Declarations of War by 
Congress, which specifically authorized military commissions to try 
those accused of war crimes. In approving the military trial of the 
German saboteurs, In re Quiren \1\ limited its holding to those enemy 
belligerents who pass ``our military and naval lines and defenses. . 
.in civilian dress'' armed with explosives, intending the don of war 
industries and supplies or military installations.\2\ The Supreme Court 
found that a military trial was permissible in these circumstances only 
because a trial by jury would not have been available to one accused of 
such a war crime when the Constitution was enacted, and that the Fifth 
and Sixth Amendments were not intended to require ``that offenses 
against the law of war not friable by jury at common law be tried only 
in the civil courts.'' \3\ In so ruling, the high court emphasized 
``the duty which rests on the courts, in time of war as well as time of 
peace, to preserve unimpaired the constitutional safeguards of civil 
liberty. . . .'' \4\
---------------------------------------------------------------------------
    \1\ 317 U.S. 1 (1942)
    \2\ Id, at 38-39
    \3\ Id., at 40.
    \4\ Id., at 19.
---------------------------------------------------------------------------
    As evidenced by the wartime interment of loyal Japanese-American 
citizens, the imposition of severe limitations of our personal liberty 
in the name of national security is a practice our nation will likely 
regret. It must not occur again. Not since the battle between the 
forces of democracy and Nazism has the role of the United. States as 
the preeminent champion of individual liberty and due process been so 
prominent. Our victory over terrorism, when it comes as it surely wily 
must be accompanied by our adherence to those principles of due process 
which serve as the benchmark of liberty for peoples around the world.
    The Bar Association of San Francisco urges the Judiciary Committee 
to carefully scrutinize the President's order of November 
13th and the proposed administrative regulation on attorney-
client communications to ensure that our constitutional protections 
remain intact. We ask the Congress to affirm its confidence in the Bill 
of Rights, as well as the federal judiciary, federal prosecutors, the 
dedicated Americans who serve as criminal defense lawyers, and a jury 
system that is esteemed by all who have watched it function so 
effectively for generations.
            Sincerely,
                                           Douglas R, Young
                                                          President

                                          Angela Bradstreet
                                                    President-Elect

                                

                        Baxley, Dillard, Dauphin & McKnight
                                           Attorneys at Law
                                  Birmingham, Alabama 35233
                                                  December 10, 2001
Hon. Jeff Sessions
United States Senator
493 Russell Building
Washington, D.C. 20510
    Dear Senator Sessions:
    I am, doubtlessly, one of your few constituents who has read the 
entire trial transcript of the Nuremberg Trials, In this vein, and as a 
result of my experience as both a prosecutor and as defense counsel, 
including appearing before military tribunals, I am writing now to 
address concern. expressed by sonic members of the press, and a few in 
the Congress, relative to the utilization of military tribunals to 
determine the innocence, guilt, punishment or release of those who have 
been Charged with crimes arising from the events of September 11, 2001, 
which are continuing today.
    In my opinion, the security of this country can be best preserved 
by supporting and implementing the proposals of President Hush in this 
regard. I have faith that the men and women who would serve on theses 
tribunals can afford any person accused complete justice, impartiality 
and fairness in the adjudication of guilt or innocence. Many Americans 
are unaware that at Nuremberg a number of those who were charged with 
war crimes were acquitted, and that some were convicted of some charges 
made against them, but acquitted of others. I recognize, of course, 
that (lie President's proposals differ from the procedures at 
Nuremberg. Nevertheless, I have endeavored to familiarize myself with 
the President's proposals arid with objections to them which have 
appeared iii the media. I consider myself sensitive to all legitimate 
arguments made i11 support of civil rights and liberties, but after 
considering all the arguments -pro and con--I continue to strongly 
support the President's proposals, and to endorse them during this 
crisis.
    lease take these views into consideration as you consider the most 
appropriate action to take regarding prosecutions arising from the; 
events of September 11, 2001, which are continuing events, and which 
threaten the security (four country. If I can be of any assistance to 
you in connection with decisions touching upon these issues in the 
United States Senate, or elsewhere, it will be an honor and a privilege 
for me to share my time and the benefit of my experience with you.
            Respectfully yours,
                                                Bill Baxley

                                

                                       United States Senate
                                       Washington, DC 20510
                                                   November 2, 2001

    Dear Colleague:

    Attached please find a copy of Jihad in America, a PBS documentary 
first aired nationwide in 1995. This documentary was produced by 
investigative reporter Steven Emerson after the first bombing of the 
World Trade Towers in 1993. The documentary explores the ideological 
and fundraising network that sustains and supports terrorist activities 
in the United States. In light of the September 11th 
tragedies, we strongly recommend this video to our colleagues.
    This documentary was made in close cooperation-with noted counter-
terrorism authorities from the Federal Bureau of investigation (FBI); 
the U.S. State Department and the Central Intelligence Agency (CIA). 
The hidden camera footage of key conferences and rallies is 
particularly revealing. The film includes footage of Islamic extremists 
in New York, Boston, New Jersey, Texas, California, Florida and Kansas, 
detailing their hatred and violent intentions toward Americans, 
including Christians, moderate Muslims and Jews in the United States. 
The interviews and taped speeches allow these extremists to state their 
chilling intentions in their own words.
    The film, then and now, has brought the attention of law 
enforcement authorities to the network of Islamic extremists in the 
United States that promotes a culture of hatred, arranges for training 
in bomb-making and target practice, raises funds for militant groups in 
the Middle East, and in some cases, supports terrorist attacks on U.S. 
soil.
    The documentary makes clear, and we would like to reiterate; that 
the majority of Muslims in the United States do not support terrorist 
activities, and that Islam as a faith condemns such acts of terrorism. 
It is made clear that the Islamic extremists who promote and carry out 
their form of Jihad, are as great a threat to moderate Muslims as they 
are to Christians, Jews and all American citizens.
    Again, we urge every Member of the Senate to view the PBS 
documentary to help us understand the scope of. the threat and what 
needs to be done to protect U.S. citizens.
            Sincerely,
                                              Sam Brownback

                                                  Ron Wyden

                                

Statement of Kathleen Clark, Professor of Law, Washington University in 
                               St. Louis

       President Bush's Order on Military Trials of Non-Citizens:
            Beyond His Constitutional or Statutory Authority
    First of all, I would like to thank Chairman Leahy for the 
opportunity to provide this testimony. I am a law professor at 
Washington University in St. Louis, and have previously taught at the 
University of Michigan and Cornell law schools. I teach courses on 
national security law as well as legal and government ethics.
    As you know, earlier this month, President Bush signed an order 
authorizing the creation of military tribunals to try non-citizens 
alleged to be involved in international terrorism against the United 
States or the al Qaida network.\1\ These military tribunals are 
troubling in many respects, particularly in their denial of basic due 
process protections for defendants, and the resulting possibility of 
wrongful convictions. Rather than focusing on the issue of civil 
liberties--which other witnesses will address--my testimony will limit 
itself to the issue of whether the President even has the authority to 
create a military court with such broad jurisdiction to try all cases 
of international terrorism against the United States. As the following 
paragraphs will show, under the Constitution and statutory law, the 
President lacks the authority unilaterally to create this kind of 
military tribunal.
---------------------------------------------------------------------------
    \1\ 66 Fed. Reg. 57831 (2001).
---------------------------------------------------------------------------
    Trials by military tribunals, like trials by civilian courts, 
involve the exercise of judicial power.\2\ The Constitution vests the 
judicial power ``in one supreme Court and in such inferior Courts as 
the Congress may from time to time ordain and establish.''\3\ A 
military tribunal, like other tribunals, must be authorized by the 
Constitution or by Congress. Congress has established military 
tribunals (courts-martial),\4\ but has limited their jurisdiction, 
primarily to offenses committed by members of the armed forces.\5\
---------------------------------------------------------------------------
    \2\ ``Every trial involves the exercise of judicial power.'' Ex 
parte Milligan, 71 U.S. 2, 209 (1866).
    \3\ U.S. Constitution, art. II, Sec. 1.
    \4\ See 10 U.S.C. Sec. Sec. 816 et seq.
    \5\ 10 U.S.C. Sec. 802 (listing persons subject to the Uniform Code 
of Military Justice). See also Edmund M. Morgan, Court-Martial 
Jurisdiction Over Non-Military Persons Under the Articles of War, 4 
Minn. L. Rev. 79 (1920).
---------------------------------------------------------------------------
    In ex parte Milligan, the Supreme Court overturned a conviction of 
a civilian by a military tribunal because the tribunal was not 
authorized by Congress or the Constitutions.\6\ The civilian, Lamdin P. 
Milligan, was arrested in Indiana during the Civil War, and charged 
with conspiring to seize munitions, liberate prisoners of war, and 
communicating with the enemy.\7\ After a military tribunal convicted 
Milligan and sentenced him to death, the Supreme Court reviewed his 
habeas petition. The Court found that neither the Constitution nor any 
statute authorized a military trial of a civilian where the civil 
courts were in operation.\8\ The Court also rejected the government's 
argument that the military trial was justified under ``the `laws and 
usages of war.' '' \9\ The Court held that even such a crisis as the 
Civil War did not justify a military trial for a citizen not connected 
with the armed forces, as long as the civilian courts were in 
operation.\10\
---------------------------------------------------------------------------
    \6\ 71 U.S. 2 (1866).
    \7\ 71 U.S. at 5.
    \8\ Id. at 210 (``One of the plainest constitutional provisions 
was, therefore, infringed when Milligan was tried by a court not 
ordained and established by Congress.'').
    \9\ Id. at 210.
    \10\ Id. at 209 (``The Constitution of the United States is a law 
for rulers and people, equally in war and in peace, and covers with the 
shield of its protection all classes of men, at all times, and under 
all circumstances.'').
---------------------------------------------------------------------------
    President Bush's Order purports to find authority in several 
sources: the President's constitutional authority as Commander in Chief 
of the Armed Forces,\11\ the Joint Resolution Authorizing the Use of 
Military Force,\12\ and two provisions of the Uniform Code of Military 
Justice.\13\ None of these authorize the creation of this type of 
military tribunal.
---------------------------------------------------------------------------
    \11\ U.S. Constitution, art. II, Sec. 2.
    \12\ Pub. L. 107-40 (Sept. 18, 2001).
    \13\ 10 U.S.C. Sec. Sec. 821, 836.
---------------------------------------------------------------------------
    First, the President's power as Commander in Chief of the Armed 
Forces does not authorize him to create military tribunals to try non-
citizens for crimes that can be tried in civilian courts. As the 
Supreme Court explained in ex parte Milligan, military tribunals for 
non-military personnel ``cannot [be] justif[ied] on the mandate of the 
President; because he is controlled by law, and has his appropriate 
sphere of duty, which is to execute, not to make, the laws; and there 
is 'no unwritten criminal code to which resort can be had as a source 
of jurisdiction.' '' \14\
---------------------------------------------------------------------------
    \14\ 71 U.S. at 210.
---------------------------------------------------------------------------
    Second, the Joint Resolution authorizes the President to use 
``force against those nations, organizations, or persons'' that were 
involved in the terrorist attacks on September 11th in order 
``to prevent future actions of international terrorism against the 
United States'' by them.\15\ Thus, Congress provided statutory 
authorization for the President's recent actions sending troops to 
Afghanistan, calling up the reserves, and deploying National Guard 
troops at airports. The Resolution is absolutely silent about any kind 
of military tribunal. It says nothing about the proper means of 
bringing to justice those involved in the September 11th 
terrorist attacks or other acts of terrorism.
---------------------------------------------------------------------------
    \15\ Pub. L. 107-40 Sec. 2(a) states:
    [T]he President is authorized to 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.
---------------------------------------------------------------------------
    The President's order also cites two sections of the Uniform Code 
of Military Justice, Sections 821 and 836 of Title 10, U.S. Code. But 
these sections do not authorize these secret military tribunals. 
Section 821 does not of itself authorize any military commission, but 
simply clarifies that if such a commission is otherwise authorized ``by 
statute or by the law of war,'' then the existence of the courts-
martial does not deprive military commissions of jurisdiction.\16\ 
Section 836 simply delegates to the President the authority to 
prescribe rules of evidence and procedure for courts-martial and 
military tribunals.\17\ Thus, if Congress had authorized a special 
military tribunal for international terrorists, Section 836 would 
authorize the President to create the rules for such a tribunal. But 
836 does not itself authorize such a tribunal.
---------------------------------------------------------------------------
    \16\ 10 U.S.C. Sec. 810.
    In ex parte Quinn, 317 U.S. 1 (1942), Justice Stone asserted that 
Section 810's predecessor, Article 15 of the Articles of War, 
explicitly authorized military tribunals for violations of the law of 
war. 317 U.S. at 10-11. While there was other statutory authority for 
the military tribunal in Quinn, it is unlikely that Article 15 actually 
had the meaning that Justice Stone attributed to it.
    But completely apart from the proper interpretation of Section 
810's predecessor, an examination of the current Section 810 makes 
clear it does not provide independent statutory authority for military 
commissions. Section 810 states in full:
    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. 810 (emphasis added).
    \17\ 10 U.S.C. Sec. 836 states in full:
    (a) Pretrial, trial, and post-trial procedures, including modes of 
proof, for cases arising under this chapter triable in courts-martial, 
military commissions and other military tribunals, and procedures for 
courts of inquiry, may be prescribed by the President by regulations 
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 the United States district courts, but which may not 
be contrary to or inconsistent with this chapter.
    (b) All rules and regulations made under this article shall be 
uniform insofar as practicable.
---------------------------------------------------------------------------
    The Executive Branch may be relying on a World War II case, ex pane 
Quirin, involving eight Nazi saboteurs who secretly entered the United 
States in order to destroy industrial and transportation 
infrastructure.\18\ But the comparison is inapt for several reasons. 
First, the statutory context could not be more starkly different. When 
the executive branch sought to try these Nazi saboteurs, it could point 
to statutes that specifically authorized trial by military commission 
of anyone who aided the enemy and of spies during wartime.\19\ Those 
statutes, Articles 81 and 82 of the Articles of War, were repealed in 
1956 when Congress adopted the Uniform Code of Military Justice.\20\
---------------------------------------------------------------------------
    \18\ 317 U.S. 1 (1942).
    \19\ 317 U.S. at 10 (``Articles 81 and 82 authorize trial, either 
by court martial or military commission, of those charged with 
relieving, harboring or corresponding with the enemy and those charged 
with spying.'').
    10 U.S.C. Sec. Sec. 1553, 1554 (Articles 81 & 82 of the Articles of 
War, repealed by Pub. L. 84-1028 (1956)). 10 U.S.C. Sec. 1553 provided:
    Whosoever relieves or attempts to relieve the enemy with arms, 
ammunition, supplies, mondy, or other thing, or knowingly harbors or 
protects or holds correspondence with or gives intelligence to the 
enemy, either directly or indirectly, shall suffer death or such other 
punishment as a court martial or military commission may direct.
    10 U.S. C. Sec. 1554 provided:
    Any person who in time of war shall be found lurking or acting as a 
spy in or about any of the fortifications, posts, quarters, or 
encampments of any of the armies of the United States, or elsewhere, 
shall be tried by a general court martial or by a military commission, 
and shall, on conviction thereof, suffer death.
    \20\ Pub. L. 84-1028 (1956).
---------------------------------------------------------------------------
    Today, by contrast, the executive branch can point only to statutes 
by which Congress has authorized terrorists to be tried in the regular 
federal courts. In recent years, Congress has regularly expanded 
federal criminal court jurisdiction to cover more terrorist offenses. 
For example, the Omnibus Diplomatic Security and Antiterrorism Act of 
1986 ensured that the federal criminal courts would have 
extraterritorial jurisdiction over terrorist acts abroad against U.S. 
nationals.\21\ The Antiterrorism and Effective Death Penalty Act of 
1996 created a new offense for acts of terrorism transcending national 
boundaries.\22\ The USA PATRIOT Act of 2001 further expands federal 
criminal prohibitions on terrorism.\23\
---------------------------------------------------------------------------
    \21\ Pub. L. 99-399, Sec. 1202, creating 18 U.S.C. Sec. 2331.
    \22\ Pub. L. 104-132, Sec. 702, creating 18 U.S.C. Sec. 2332b.
    \23\ Pub. L. 107-56, Sec. Sec. 802, 803, 805, 808, amending 18 
U.S.C. Sec. Sec. 2331, 2339, 2339A, 233913.
---------------------------------------------------------------------------
    In addition, Congress had made a formal declaration of war by the 
time that President Roosevelt created the Quirin military 
commission.\24\ Congress's declaration authorized a general war and 
provided Roosevelt with the full panoply of war-time powers available 
to a president. By contrast, currently Congress has authorized only a 
limited war against those who planned or aided the terrorist attacks on 
September 11. In a limited war, where Congress authorizes specific 
types of military action, the executive branch must confine its actions 
to those specifically authorized by Congress.\25\
---------------------------------------------------------------------------
    \24\ Proclamation 2561 (July 2, 1942), 7 Fed. Reg. 5101 (1942); 
Appointment of a Military Commission (July 2, 1942), 7 Fed. Reg. 5103 
(1942).
    \25\ See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 
(striking down President Truman's Executive Order taking possession of 
steel mills during the Korean War because Congress had refused to grant 
the President this authority). See also Little v. Barreme, 6 U.S. 170 
(1804).
---------------------------------------------------------------------------
    It is also important to note the difference in scope between 
President Roosevelt's order creating the military commission for the 
Nazi saboteurs, and President Bush's order. While President Roosevelt 
had robust statutory authority to create a wide-ranging set of military 
tribunals for saboteurs and spies, he chose to create a single tribunal 
to deal with the eight specified saboteurs who were already in custody. 
On the other hand, President Bush, lacking any statutory authority, is 
attempting to create military commissions for unnamed and unnumbered 
defendants accused not just of particular crimes for which Congress has 
authorized military tribunals, or even for crimes against the law of 
war, but for any international terrorism against the United States. 
International terrorism against the United States does not necessarily 
constitute a violation of the law of war. Thus, President Bush's order 
goes beyond the outer reaches of his constitutional authority. While 
the Roosevelt order in Quinn had a strong statutory basis, the Bush 
order on military commissions goes beyond his authority as President.
    Finally, I draw your attention to these words from the Supreme 
Court's decision in ex pane Milligan, which can serve as an important 
guide in these difficult times:

        The Constitution of the United States is a law for rulers and 
        people, equally in war and in peace, and covers with the shield 
        of its protection all classes of men, at all times, and under 
        all circumstances. . . .[T]he government, within the 
        Constitution, has all the powers granted to it, which are 
        necessary to preserve its existence. . . .\26\

    \26\ 71 U.S. at 120-21.
---------------------------------------------------------------------------
    In this time of uncertainty and fear, it is as important as ever 
for Congress to ensure that the executive branch abides by the 
constitutional limits on its authority.

                                

                  Statement of The Federalist Society

                     national security white papers
      The War on Terrorism: Law Enforcement or National Security?
    [The Federalist Society takes no position on particular legal or 
policy issues. The views expressed herein are those of the authors 
alone]

        George Terwilliger--White & Case, Washington, D.C. served as 
        Deputy Attorney General in the Bush I Administration.
        Theodore Cooperstein--``Office of Theodore Cooperstein, 
        Attorney at Law, Washington D.C., has served as Assistant 
        General Counsel, Federal Bureau if Investigation
        Shawn Gunnarson--White & Case, Washington, D.C.
        Daniel Blumenthal--Kelley Drye & Warren, New York. The views 
        expressed herein are those of the author alone and do not 
        reflect the views of Kelleye Drye & Warren.
        Robert Parker--Paul Weiss Rifkind Wharton & Garrison, 
        Washington, D.C.

    The horrific events of September 11th were immediately 
labeled ``acts of terrorism,'' but as events unfolded, they were 
quickly revealed as ``acts of war.'' The anthrax attacks that followed 
were surely acts of terrorism, but not necessarily acts of war by a 
foreign belligerent. As of this writing, investigators have been 
pursuing the possibility that the anthrax attacks are acts of domestic 
terrorism with no organizational links to those who engaged in the acts 
of war on September 11th.
    Federal officials face the unprecedented situation of having to 
respond immediately to crisis events that are both war and crimes. This 
new paradigm of warfare has blurred the previously more-or-less clear 
line between national defense and law enforcement. And the idea of 
national defense is changing to encompass a broader range of threats 
than historically posed by a warring nation-state.
    Historically, ``war'' has been only between states. (``Every 
contention by force between two nations, in external matters, under the 
authority of their respective governments.'') \1\ Except for civil 
wars, acts of individuals and groups not qualifying as states have been 
deemed crimes either against the law of a particular state or violators 
of the ``law of nations,'' e.g. piracy (much terrorism has been state-
sponsored).\2\ This country's initial legal response to terrorism in 
the 1980s was a law enforcement approach which extended the 
jurisdiction of the United States to criminal acts against Americans 
abroad.\3\
---------------------------------------------------------------------------
    \1\ Bas v. Ting, 4 U.S. (4 Dall.) 37, 40 (1800) see (opinion of 
Washington, J.).
    \2\ For statutes on piracy, see 18 U.S.C. Sec. 1651-1661.
    \3\ See ``Diplomatic Security and Antiterrorism Act of 1986,'' Pub. 
L. N. 99-399, 100 Stat. 853.
---------------------------------------------------------------------------
    The realization, however, that non-state and clandestinely state 
sponsored groups now have the ability and willingness to employ means 
of mass destruction has dictated the recognition that states no longer 
have a monopoly on war. Therefore, it has become appropriate to use war 
powers against foreign terrorist organizations. Using those war powers 
against foreign terrorists operating within the United States calls for 
an understanding of when actions of force or terrorism by non-state 
groups should be treated pursuant to national security powers, rather 
than within the domain of law enforcement.\4\
---------------------------------------------------------------------------
    \4\ For discussion of whether a formal declaration of war by 
Congress is required, an issue beyond the scope of this paper, see 
generally Bas v. Tingy, 4 U.S. 37 (4 Dall.) (1800) (opinion of 
Washington, J.); The Prize Cases, 67 U.S. (2 Black) 365 (1862).
---------------------------------------------------------------------------
    The use of national security powers against groups of foreign 
belligerents found within the United States raises dangers which could 
result from militarizing the homeland.\5\ Nevertheless, as the Framers 
intended, the Constitution both gives the federal government all the 
powers necessary to defend the country,\6\ and also limits the 
possibilities for abuse of those powers through separation of powers 
and federalism.\7\ It is understandable that the initial response to 
the unprecedented attacks within the U.S. by foreign forces on 
September 11th emphasized centralized command and control. 
As we adjust to the new reality, an effective national security 
strategy requires a range of responses based on recognizing the 
relationship between:
---------------------------------------------------------------------------
    \5\ See Federalist No. 8.
    \6\ See Federalist Nos. 23-24.
    \7\ See Federalist No. 51.

        1) national security powers and law enforcement powers;
        2) the rights of citizens and non-citizens; and
        3) centralized and decentralized defenses.
  i. international terrorism is a matter of national security, rather 
                  than merely criminal law enforcement
    Debate about particular anti-terrorism measures often rests on an 
incomplete understanding of the constitutional principles involved as 
well as on an over-judicialization of political and policy issues. Our 
national leaders have a constitutional responsibility to secure the 
country from foreign threats, and the Framers of our Constitution often 
referred to this obligation during the Philadelphia convention, in The 
Federalist Papers, and elsewhere. Indeed, the Preamble to the 
Constitution makes this very point when it states that the Constitution 
was ordained and established to ``insure domestic tranquility'' and 
``provide for the common Defence.'' In other words, we must not only 
account for the traditional rights that citizens enjoy, but also the 
broad national security power that the Constitution grants to the 
government to take action against unlawful belligerents acting on U.S. 
soil. Resolution of the significant constitutional questions raised by 
measures to address the current terrorist threat thus requires a clear 
understanding of both the powers that the Constitution grants to the 
government when national security is at stake, and the circumstances in 
which the exercise of those powers do and do not infringe our civil 
liberties. This is consistent with how the Framers viewed our 
Constitutional system-namely, that structural issues are inextricably 
intertwined with questions relating to the protection of freedom. It is 
axiomatic that the federal government has all the constitutional power 
necessary to defend the nation, whether the threat comes from foreign 
attack or from the breakdown of internal order. As Alexander Hamilton 
wrote in Federalist No. 23, the powers of the federal government to 
provide for the common defense are complete.

        These powers ought to exist without limitation: Because it is 
        impossible to foresee or define the extent and variety of 
        national exigencies, or the correspondent extent & variety of 
        the means which may be necessary to satisfy them. The 
        circumstances that endanger the safety of nations are infinite; 
        and for this reason no constitutional shackles can wisely be 
        imposed on the power to which the care of it is committed. This 
        power ought to be co-extensive with all the possible 
        combinations of such circumstances; and ought to be under the 
        direction of the same councils, which are appointed to preside 
        over the common defense.

    This ``truth,'' according to Hamilton,

        rests upon axioms as simple as they are universal. The means 
        ought to be proportioned to the end; the persons, from whose 
        agency the attainment of any end is expected, ought to possess 
        the means by which, it is to be attained.\8\
---------------------------------------------------------------------------
    \8\ Federalist No. 23.

    The Supreme Court has confirmed Hamilton's view that the 
Constitution confers on the federal government an ``independent 
substantive power'' with respect to national security, and specifically 
with respect to the ``persons or property of [an] enemy found, at the 
time, within the territory'' of the United States.\9\ Providing for the 
security of one's country is an inherent feature of national 
sovereignty, and the Constitution expresses or confirms that fairly 
obvious point by vesting in a President the general Executive power 
under Article Two.\10\
---------------------------------------------------------------------------
    \9\ Brown v. United States, 12 U.S. [8 Cranch] 110, 125-126 (1814).
    \10\ See United States v. Curtis-Wright Export Corp., 299 U.S. 304, 
315-19 (1936).
---------------------------------------------------------------------------
    In previous wars, except the Civil War, a fairly discernable line 
has existed between external defense and internal police. Thus, the 
Supreme Court has distinguished ``between the powers of the federal 
government in respect to foreign or external affairs and those in 
respect of domestic or internal affairs.'' \11\ This same division has 
passed a law that limited presidential use of military forces for 
domestic law enforcement to situations in which ordering means of law 
enforcement could not restore order.\12\ During the Civil War and 
Reconstruction, Congress expanded the internal use of military forces. 
In 1878, after the domestic crisis had passed, Congress enacted the 
``Posse Comitatus Act,'' \13\ which prohibits the use of the military 
(expressly, just the Army and Air Force) to execute the laws of the 
United States, the states or the territories, except as specifically 
provided.\14\
---------------------------------------------------------------------------
    \11\ Curtiss-Wright Export Corp., 299 U.S. at 315.
    \12\ Brian L. Porto, Annotation, Construction And Application Of 
Posse Comitatus Act (18 U.S. C.A. Sec. 1385), And Similar Predecessor 
Provisions, Restricting Use Of United States Army And Air Force To 
Execute Laws, 141 A. L. R. Fed. 271 (1997). Use of troops domestically 
for purposes other than law enforcement would be a different matter. 
For that issue, see the briefing paper prepared by Paul Stevens that 
appears on our website, http://www.fed--soc.org
    \13\ ``Posse Comitatus'' means ``power of the country.''
    \14\ 18 U.S.C. Sec. 1385.
---------------------------------------------------------------------------
    The federal government does have law enforcement powers, but those 
powers have limits. In particular, the federal government has no 
general police power.\15\ Congress must find the source for enacting 
criminal law either in particular enumerated powers or in the means 
necessary to implement those powers.\16\
---------------------------------------------------------------------------
    \15\ See United States v. Morrison, 120 S. Ct. 1740, 1754 (quoting 
United States v. Lopez, 514 U.S. 549, 566 (1995) (``[t]he Constitution 
withhold[s] from Congress a plenary police power'').
    \16\ See McCulloch v. Maryland. U.S. (4 Wheat.) 316 (1819).
---------------------------------------------------------------------------
    In matters of national security, on the other hand, the powers of 
the federal government are broader. The Constitution grants to the 
Executive and Legislative Branches, as the preamble announces, specific 
powers to ``insure domestic Tranquility and provide for the common 
Defence.'' Most notable and relevant for present purposes is the power 
of the Congress under Article I, section 8 to declare war, but also its 
power to ``define and punish. . .Offenses against the Law of Nations'' 
and to ``make Rules concerning Captures on Land and Water.'' Likewise, 
the role of the President, under Article II, section 2, as the 
``Commander in Chief of the Army and the Navy of the United States, and 
of the Militia of the several States, when called into the actual 
Service of the United States'' reflects the Constitution's grant of 
authority to the Executive Branch to address threats to national 
security independent of the President's separate role as chief 
magistrate and prosecutor of criminal laws.
    This constitutional authority to provide for the national defense 
and to protect national security in the face of enemy attack extends 
not only to the conduct of war by traditional military means, but also 
to the treatment of individuals who prosecute the attack on the enemy's 
behalf. ``An important incident to the conduct of war is the adoption 
of measures by the military commander, not only to repel and defeat the 
enemy, but 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.'' \17\
---------------------------------------------------------------------------
    \17\ In re Yamashita, 327 U.S. 1, 9 (1946); accord Johnson v. 
Eisentrager, 339 U.S. 763, 774-75 (1950) (``Executive power over enemy 
aliens, undelayed and unhampered by litigation, has been deemed 
throughout our history, essential to war-time security''); Miller v. 
United States, 78 U.S. (11 Wall.) 268, 305 (1870) (``Of course the 
power to declare war involves the power to prosecute it by all means 
and in any manner in which war may legitimately be prosecuted. It 
therefore includes the right to seize and confiscate all property of an 
enemy and to dispose of it at the will of the captor'').
---------------------------------------------------------------------------
    The authority that the Constitution confers on the federal 
government to prosecute the enemy by all appropriate means applies to 
the enemy found at home as well as those encountered abroad.\18\ Quirin 
concerned a group of saboteurs who were landed by German U-boats on 
U.S. beaches during World War II. Their assignment from the German 
military authorities was to destroy military targets and war-production 
facilities on the U.S. home front. All of the saboteurs were Germans 
except one, Haupt, who claimed to be a naturalized U.S. citizen. After 
capture by the FBI, the belligerents were placed in military custody. 
Pursuant to an Executive order, they were tried by a military 
commission, which found them all guilty and sentenced them to death. 
They then filed petitions for writs of habeas corpus, challenging the 
authority of the military tribunal, and the tribunal's denial to them 
during its proceedings of the Constitutional rights specified in 
Article III and the Fifth and Sixth Amendments.
---------------------------------------------------------------------------
    \18\ Ex Parte Quirin, 317 U.S. 1 (1942).
---------------------------------------------------------------------------
    The Supreme Court upheld the military commission's authority. The 
Court concluded that the President, as Commander-in-Chief, has the 
power to enforce all laws relating to the conduct of war, ``and to 
carry into effect. . .all laws defining and punishing offenses against 
the law of nations including those which pertain to the conduct of 
war.'' \19\ This power, the Court held, includes the authority ``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.'' \20\
---------------------------------------------------------------------------
    \19\ Id. at 26.
    \20\ Id. at 28-29.
---------------------------------------------------------------------------
    The Court likewise rejected the would-be saboteurs' claim to the 
traditional constitutional rights enjoyed by an accused in the criminal 
justice system. The Court concluded, first, that the saboteurs were not 
criminal defendants, but rather were unlawful belligerents accused of 
violating the laws of war. ``[A]n enemy combatant who without uniform 
comes secretly through the lines for the purpose of waging war by 
destruction of life or property, is familiar examples of belligerents 
who are generally deemed. . .to be offenders against the law of war 
subject to trial and punishment by military tribunals.'' \21\
---------------------------------------------------------------------------
    \21\ Quirin, 317 U.S. at 30-31.
---------------------------------------------------------------------------
    The Court next rejected the unlawful combatants' claim that, having 
been captured by FBI agents on U.S. soil, they enjoyed constitutional 
rights under Article III and the Fifth and Sixth Amendments. ``We 
conclude that the Fifth and Sixth Amendments did not restrict whatever 
authority was conferred by the Constitution to try offenses against the 
law of war by military commission, and that petitioners, charged with 
such an offense not required to be tried by jury at common law, were 
lawfully placed on trial by the Commission without a jury.'' \22\
---------------------------------------------------------------------------
    \22\ Id. at 45; see also Yamashita, 327 U.S. at 23 (rejecting a 
Fifth Amendment challenge to the introduction of hearsay evidence in a 
prosecution before a military commission; ``[T]he commission's rulings 
on evidence and on the mode of conducting these proceedings against 
petitioner are not reviewable by the courts. . . .From this viewpoint 
it is unnecessary to consider what, in other situations, the Fifth 
Amendment might require[.])''
---------------------------------------------------------------------------
    Finally, the Court in Quirin readily rejected Haupt's claim of 
constitutional rights by virtue of his purported U.S. citizenship. U.S. 
citizenship, the Court held, ``does not relieve him from the 
consequences of a belligerency which is unlawful because in violation 
of the law of war.'' \23\ By virtue of his allegiance to a foreign 
enemy and his taking up arms on behalf of that enemy, therefore, Haupt 
was subject to military punishment, rather than criminal justice.
---------------------------------------------------------------------------
    \23\ Quirin, 317 U.S. at 37.
---------------------------------------------------------------------------
    This distinction between an unlawful belligerent and a traitorous 
civilian is well-grounded in constitutional precedent, and can be 
viewed as the definitive boundary between the government's national 
security power and its law enforcement authority. In Ex Parte 
Milligan,\24\ the Court considered the conviction by a military 
tribunal of a U.S. citizen, resident in Indiana, who was accused of 
conspiring to aid the cause of the Confederacy, then at war with the 
United States. The Court unanimously overturned the conviction. 
Although the Court divided on the question of the tribunal's 
authority,\25\ it concluded that ``no usage of war could sanction a 
military trial there for any offence whatever of a citizen in civil 
life, in no wise connected with the military service.'' \26\ The Court 
in Quirin thus recognized that Milligan presented a different case, and 
raised different constitutional questions, than did the case before 
it.\27\ We can draw from Quirin and Milligan, therefore, a clear 
distinction between a belligerent who threatens the national security 
at the service of a foreign enemy, and a civilian whose crime--although 
it may involve aiding and abetting an enemy in time of war--is subject 
to the jurisdiction of traditional law enforcement (rather than 
military) authority. The latter, but not the former, thus enjoys the 
constitutional protections of an accused, though fraudulent acquisition 
of citizenship would not afford a belligerent these constitutional 
protections (a point that is further discussed in the next 
section).\28\
---------------------------------------------------------------------------
    \24\ 71 U.S. (4 Wall.) 2 (1866).
    \25\ The majority refused to consider the scope of the military 
tribunal's authority in this context, although the minority readily 
acknowledged the authority of such a tribunal that is ``exercised in 
time of invasion or insurrection within the limits of the United 
States. . .when the public danger requires its exercise.'' 71 U.S. at 
121 (majority) & 142 (opinion of Taney, C.J. and Wayne, Swayne and 
Miller, J).).
    \26\ Ex Parte Milligan, 71 U.S. at 121-22.
    \27\ See Quirin, 317 U.S. at 45. (Milligan involved a citizen who 
``was not an enemy belligerent. . .subject to the penalties imposed 
upon unlawful belligerents. . . .[Milligan was not] a part of or 
associated with the armed forces of the enemy, was a non-belligerent, 
not subject to the law of war save as. . .martial law might be 
constitutionally established'').
    \28\ The courts have also made clear that they stand ready to 
patrol the boundary between the exercise of legitimate national 
security powers directed to unlawful belligerents and the illegitimate 
use of that authority when directed at citizen civilians. In Quirin, 
and on two occasions since Quirin, the Supreme Court has recognized its 
authority to consider habeas corpus petitions filed by enemy aliens who 
claim they are wrongly held in military custody. In Yamashita, the 
Court held that Congress ``has not withdrawn, and the Executive branch 
of the Government could not, unless there was suspension of the writ, 
withdraw from the courts the duty and power to make such inquiry into 
the authority of the commission as may be made by habeas corpus.'' 327 
U.S. at 9. In Johnson v. Eisentrager, the Court pointed out that, 
despite its rulings in Quirin and Yamashita upholding the authority of 
the military commissions, in each case the petitioners had the benefit 
of a hearing at which an Article III court considered their 
applications and provided them with an opportunity to present reasons 
for their release from military jurisdiction. 339 U.S. at 780-81.
---------------------------------------------------------------------------
    The assessment of anti-terrorist measures, both those already 
enacted and those considered for future implementation, should not be 
examined exclusively through the lens of the government's traditional 
law enforcement powers. To the extent that anti-terrorist measures are 
directed at protecting our nation's security from those in the active 
service of our enemies, then the government may exercise a 
constitutional authority that is separate from and independent of its 
law enforcement powers. The exercise of that authority is not an 
infringement on the constitutional rights of civilians under Article 
III or the Fifth and Sixth Amendments, but a vindication of the 
citizens' collective grant of the powers of defense to the national 
government.
ii. meaningful distinctions exist between citizens and non-citizens in 
                      the law of the constitution

    A. Citizens at Home Enjoy the Broadest Constitutional Protections 
Against the Federal Government
    An American citizen or national is entitled as a constituent of the 
American polity to the protective restrictions the Constitution imposes 
on the United States government. Law enforcement accordingly is held to 
requirements of reasonableness and probable cause in performing 
searches and seizures against United States nationals.\29\
---------------------------------------------------------------------------
    \29\ Reid v. Covert, 354 U.S. 1 (1957); Best v. United States, 184 
F.2d 131,138 (1st Cir. 1950), cert. denied, 340 U.S. 939 (1951); Berlin 
Democratic Club v. Rumsfeld, 410 F. Supp. 144, 157, (D.D.C. 
1976)(``There is no question, of course, that the Constitution applies 
to actions by the United States officials taken against American 
citizens overseas.'').
---------------------------------------------------------------------------
    At the international borders or their functional equivalents, 
Executive power to stop and search both citizens and aliens is 
plenary.\30\ ``It is undoubtedly within the power of the Federal 
Government to exclude aliens from the country.'' \31\ The plenary power 
stems from the interest of national self-protection is available not 
only at the formal border crossing, but also at functional equivalents 
such as international airports, or crossroads within a `reasonable' 
distance from the border.\32\
---------------------------------------------------------------------------
    \30\ United States v. Montoya de Hernandez, 473 U.S. 532, 537 
(1985)(``since the founding of our Republic, Congress has the Executive 
plenary authority to conduct searches and seizures at the border, 
without probable cause or warrant.'')
    \31\ Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) 
(citing Chae Chan Png v. United States, 130 U.S. 581, 603-04).
    \32\ Id. at 272-73
---------------------------------------------------------------------------
    The United States Government must also follow established 
procedures and afford constitutional due process when trying (civilian) 
U.S. citizens abroad. Yet even this rule need not be absolute. For 
instance, in occupied military zones the particular application of the 
War Power may be constitutionally permitted.\33\ More recently, a 
District Court has ruled that the al-Qaeda terrorist network qualifies 
as a ``foreign power'' so as to permit the Foreign Intelligence 
Exception to the Fourth Amendment warrant requirement and allow the 
overseas search of an American working for that foreign power.\34\
---------------------------------------------------------------------------
    \33\ Best, 184 F.2d at 140-41 (warrantless search by U.S. Army 
upheld in Occupation Zone of postwar Austria).
    \34\ United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 
2000) (Applying Fourth Amendment to overseas search of American 
citizen, declining to apply exclusionary rule).
---------------------------------------------------------------------------
    Moreover, foreign governments are not bound by the Constitution 
unless there is an active collaboration with United States agencies. 
Acts of a foreign government within its own territory against United 
States citizens are not subject to the limitations of the 
Constitution.\35\ Accordingly, United States officials and agencies are 
free to accept and make use of any truly independent assistance or 
information offered by other nations without regard to the methods or 
sources by which it was obtained.
---------------------------------------------------------------------------
    \35\ Rumsfeld, 410 F. Supp. at 154 (``The fourth amendment does 
apply to actions of foreign officials if United States officials 
participated in those actions so to convert them into joint ventures 
between the Untied States and the foreign officials'') (citations 
omitted); see also Stonehill v. United States, 405 F.2d 738, 743-44 
(9th Cir. 1968).
---------------------------------------------------------------------------
B. Non-Citizens Enjoy Lesser Protections Under the Constitution
    When operations focus on aliens abroad, the legal constraint under 
the Constitution is the least certain. The citizenship status of the 
person significantlyaffects the obligations and restrictions of the 
United States actors towards individuals overseas. In contrast to the 
alien lawfully resident in the United States, ``there are different 
expectations of treatment than when a non-resident alien is simply 
affected by United States officials abroad. In the former instances, 
the United States has the power to, or has in fact imposed the 
framework of its government process on the non-resident alien. . . 
.[But when the alien] is harmed in his own country, he cannot and 
should not expect entitlement to the advantage of a United States 
court.'' \36\ The ``purpose of the Fourth Amendment was to protect the 
people of the United States against arbitrary action by their own 
Government; it was never suggested that the provision was intended to 
restrain the actions of the Federal Government against aliens outside 
of the United States territory.'' \37\
---------------------------------------------------------------------------
    \36\ Rumsfeld, 410 F. Supp. at 152.
    \37\ Verdugo-Urquidez, 494 U.S. at 266.
---------------------------------------------------------------------------
    The Supreme Court has similarly ``rejected the claim that aliens 
are entitled to Fifth Amendment rights outside the sovereign territory 
of the United States.'' \38\ In times of war, domestic application of 
the Fifth Amendment to , nonresident aliens is not presumed: 
``Executive power over enemy aliens, undelayed and unhampered by 
litigation, has been deemed, throughout our history, essential to war-
time security. . . .The resident enemy alien is constitutionally 
subject to summary arrest, internment and deportation whenever a 
`declared war' exists.'' \39\
---------------------------------------------------------------------------
    \38\ Id. at 269; see Johnson v. Eisentrager, 339 U.S. 763 (1950).
    \39\ Eisentrager, 339 U.S. at 774-75.
---------------------------------------------------------------------------
    The controlling precedent concerning the Fourth Amendment's 
application to aliens outside the United States is United States v. 
Verdugo-Urquidez.\40\ Verdugo-Urquidez was indicted on drug charges 
under United States law, when he was a Mexican citizen residing in 
Mexico. Mexican police officers delivered Verdugo-Urquidez to the 
United States border, where he was arrested and charged. Agents of the 
U.S. Drug Enforcement Administration (DEA), with the permission and 
assistance of the Mexican federal police, conducted searches of 
Verdugo-Urquidez's two houses in Mexico, obtaining documents evidencing 
Verdugo-Urquidez's drug smuggling.
---------------------------------------------------------------------------
    \40\ 494 U.S. 259 (1992).
---------------------------------------------------------------------------
    On Verdugo-Urquidez's motion to suppress the documents, the 
District Court ruled the Fourth Amendment applied to the searches 
conducted in Mexico, and that the DEA agents had no cause to conduct 
those searches without a warrant.\41\ The Court of Appeals for the 
Ninth Circuit affirmed, ruling that the searches were subject to the 
Fourth Amendment, and therefore unlawful without a warrant or exigent 
circumstances.\42\
---------------------------------------------------------------------------
    \41\ 494 U.S. at 263.
    \42\ United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 
1988).
---------------------------------------------------------------------------
    The Supreme Court reversed, holding that the Fourth Amendment does 
not apply to the search and seizure of a nonresident alien's property 
outside of the United States.\43\ Both the majority opinion and the 
dissent recognized that the Fourth Amendment applied to protect 
American citizens, without regard to territorial restriction.\44\ While 
other provisions of the Bill of Rights, such as the Fifth or Sixth 
Amendments, establish procedural trial rights which inure to a person 
who becomes a criminal defendant in United States custody, the Fourth 
Amendment's restrictions on search and seizure protect a right of ``the 
people'' as opposed to any person or any accused. A search and seizure 
can violate these restrictions prior to, or even absent, a trial or 
conviction.\45\ It therefore made no difference to a Fourth Amendment 
analysis, despite the dissent's protest to the contrary, whether 
Verdugo-Urquidez was within or without the United States, or in 
custody, at the time the agents searched the Mexican properties. A 
judicial warrant would have had null effect outside the United 
States.\46\ But a requirement to obtain a warrant, implied by 
application of the Fourth Amendment, would have pernicious effect on 
United States operations overseas, including, the Court feared, 
military operations.\47\ The Supreme Court accordingly reversed the two 
lower courts' opinions.
---------------------------------------------------------------------------
    \43\ 494 U.S. at 274.
    \44\ 494 U.S. at 283 n.7, 291 n.11.
    \45\ Id. at 264; Id. at 278 (Kennedy, J., concurring).
    \46\ Id. at 274; Id. at 279 (Stevens, J., concurring).
    \47\ Id. at 273. This reasoning also militates against application 
of constitutional due process protections and other Bill of Rights 
provisions to aliens who are abroad.
---------------------------------------------------------------------------
    The Supreme Court dissent noted that ``non-law enforcement 
activities, not directed against enemy aliens in wartime but 
nevertheless implicating national security'' \48\ should not suffer 
impairment under the Fourth Amendment. ``Many situations involving 
sensitive operations abroad likely would involve exigent 
circumstances'' and thus not need a warrant.\49\ Thus both the dissent 
and the majority in Verdugo-Urquidez leave open the possibility that 
intelligence collection and operations overseas can proceed without 
constitutional burden, on the significant, if unstated, assumption that 
the intent remains unchanged throughout the investigation to collect 
information solely for intelligence purposes. But the dissent's 
analysis seems necessarily to rely on the continued dichotomy between 
intelligence and law enforcement in distinguishing the Fourth 
Amendment's applicability to either function. In today's world, where 
the line between crime and war has been blurred by mass murder of 
civilians in attacks upon nations by unlawful belligerents, the 
dichotomy between gathering ``intelligence'' in support of national 
defense and obtaining evidence in support of law enforcement is less 
clear than the dissent might have supposed.
---------------------------------------------------------------------------
    \48\ Id. at 292.
    \49\ 49. Id.
---------------------------------------------------------------------------
    Similar considerations govern seizures, as well as searches, of 
aliens abroad. Since the Nineteenth Century it has been held that 
United States courts may exercise personal jurisdiction over any one 
properly charged and present before that court, regardless of how he 
found his way to that court. ``[D]ue process of law is satisfied when 
one present in court is convicted of crime after having been fairly 
apprized [sic] of the charges against him and after a fair trial in 
accordance with constitutional procedural safeguards.'' \50\ The 
defendant can legally be tried even after plain abduction brought him 
to the court, whether across interstate lines,\51\ or across 
international borders.\52\ The Supreme Court most recently affirmed 
this principle in United States v. Alvarez-Machain.\53\ While the 
international application of this principle is subject to the 
strictures of any given extradition treaty between the United States 
and the alien's nation of citizenship, under customary international 
law practice, any individual rights under an extradition treaty are 
solely derivative of the nation's rights. Any government must 
specifically object in accordance with the terms of the extradition 
treaty, for only governments can invoke such treaties, and the rights 
under them can be and frequently are waived.\54\
---------------------------------------------------------------------------
    \50\ United States v. Alvarez-Machain, 504 U.S. 655, 661 (1992) 
(citing to Frisbie v. Collins, 342 U.S. 519 (1952).
    \51\ Frisbie v. Collins, 342 U.S. 519.
    \52\ Ker v. Illinois, 119 U.S. 436 (1886).
    \53\ 504 U.S. 655 (1992).
    \54\ 504 U.S. at 667.
---------------------------------------------------------------------------
    This does not mean that aliens would be devoid of all legal 
protection or safeguard. The Court in Verdugo-Urquidez left the door 
open to constitutional claims by aliens in this country.\55\ In 
addition, where the Constitution and federal statutes are otherwise 
silent, aliens may resort to relevant international agreements such 
extradition treaties, treaties of friendship, commerce and navigation, 
tax treaties, and mutual legal assistance treaties, to the extent they 
are self-executing.
---------------------------------------------------------------------------
    \55\ 394 U.S. at 270-71
---------------------------------------------------------------------------
    In conclusion, under Verdugo-Urquidez, the Fourth Amendment does 
not operate to protect individuals; rather it operates to protect ``the 
class of persons who are part of a national community or who have 
otherwise developed sufficient connection with the country to be 
considered part of that community.'' \56\ The farther an individual is 
removed from the ``community,'' the less claim he has to constitutional 
protection.\57\ Accordingly, it would be reasonable to conclude that an 
unlawful belligerent--even within the United States (and certainly 
outside the United States)--has by taking up arms against the United 
States so far removed himself from the national community as to forfeit 
Fourth Amendment rights.
---------------------------------------------------------------------------
    \56\ 494 U.S. 265
    \57\ Compare Bridges v. Wilson, 326 U.S. 135 (1945) (resident alien 
has first amendment rights) with U.S. ex. Rel. Turner v. Williams, 194 
U.S. 229 (1904) (excludable alien does not have First Amendment 
rights).
---------------------------------------------------------------------------
C. Citizenship Procured by Fraud is Void Ab Initio and Provides No Safe 
        Harbor
    ``[A]dmission to the United States [is] a privilege and [an alien] 
has no constitutional rights regarding his application, for the power 
to admit or exclude aliens is a sovereign prerogative.'' \58\ Congress 
and the Executive have clear legal powers to exclude terrorists, to 
remove them if they get inside our borders, and to revoke their 
citizenship if that citizenship was based on fraud.
---------------------------------------------------------------------------
    \58\ Landon v. Plasencia, 459 U.S. 21, 32 (1982).
---------------------------------------------------------------------------
    Other aspects of this paper make clear that the Constitution 
confers ample powers on the President and Congress to defend the nation 
from international terrorists on U.S. soil. This portion addresses why 
aliens who obtain their immigration status by fraud should be deemed 
without lawful status and, therefore, not entitled to the full panoply 
of constitutional protections accorded to United States citizens.
    Terrorists frequently rely on deception and outright fraud to 
obtain the immigration status that allows them to enter or remain in 
the U.S. Ramzi Yousef, widely regarded as the mastermind behind the 
first World Trade Center bombing in February 1993, had been in official 
custody the previous September when he landed without a visa at JFK 
Airport.\59\ After being only ``briefly detained,'' he was released and 
``granted asylum pending a hearing.'' \60\ Mir Amal Kasi, convicted of 
murdering two CIA employees outside the agency's headquarters in 
Langley, Virginia, got his visa based on false statements.\61\
---------------------------------------------------------------------------
    \59\ Laurie Mylroie, ``The World Trade Center Bomb: Who is Ramzi 
Yousef? And Why it Matters,'' 42 Nat'l Int. 3 (1995).
    \60\ Id.
    \61\ Ed Timms, ``Critics Say Visa System Was Help to Hijackers,'' 
Dallas Morning News, Sep. 15, 2001, at 25A.
---------------------------------------------------------------------------
    In responding to the immediate threats posed by international 
terrorism, the wise words of Justice Robert Jackson are particularly 
fitting: ``[T]he underlying consideration is the power of our system of 
government to defend itself, and changing strategy of attack by 
infiltration may be met with changed tactics of defense.'' \62\
---------------------------------------------------------------------------
    \62\ Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 223 
(1953) (Jackson, J., dissenting).
---------------------------------------------------------------------------
    Preventing abuse of immigration laws that are intended to welcome 
lawful visitors and emigres and exclude terrorists is one important 
step in the war against international terrorism. Congress has made 
clear that aliens seeking entry or citizenship must tell the truth. An 
alien who lies to obtain citizenship or favorable immigration status 
does not deserve to remain in this country. Thus, Congress has provided 
that a resident alien convicted of fraud on a visa application is 
deportable.\63\ Falsely claiming to be a citizen likewise renders a 
person deportable.\64\ And Congress has specifically directed the 
Executive to revoke the citizenship of any naturalized citizen who 
procures citizenship by ``concealment of a material fact or by willful 
misrepresentation.'' \65\
---------------------------------------------------------------------------
    \63\ 8 U.S.C. at Sec. 1227(a)(3)(C).
    \64\ Id. at Sec. 1227(a)(3)(D).
    \65\ Id. at Sec. 1451(x).
---------------------------------------------------------------------------
    These rules are obviously fair. But what constitutional protection 
should be accorded an alien who has procured his presence in the United 
States through fraud or other unlawful act? The law generally denies 
the benefit of a transaction to one who procured that transaction by 
fraud.\66\ Moreover, fraudulently obtaining immigration status or 
citizenship is no garden-variety fraud. It undermines the social 
compact, the foundation of our legal system, by falsely claiming to 
have entered it. Even the most ardent civil libertarian would agree 
that the law cannot be permitted to reward deceit and fraud. An alien 
who lies and cheats to enter this country simply does not deserve the 
same legal protections as do the millions of immigrants and visitors 
who obtained their status lawfully. Alien terrorists and suspected 
terrorists who claim constitutional protections against searches, 
detention and other anti-terror measures should first have their 
immigration status examined. If that status was obtained by fraud, 
misrepresentation or other unlawful means, then it should be deemed 
void ab initio. Such an alien should be treated under the law as if he 
never was lawfully admitted to the United States--because in a very 
real sense he was not.
---------------------------------------------------------------------------
    \66\ Cf. Restatement (Second) of Torts Sec. 549, cmt. g (1976).
---------------------------------------------------------------------------
    Supreme Court decisions construing congressional mandates in this 
area leave no doubt that the Executive possesses ample powers to limit 
the rights of aliens who obtain citizenship or immigration status 
through fraud. Generally, the power to exclude aliens--including 
foreign terrorists and their supporters--falls well within the power of 
Congress and the Executive.\67\ Because the power to exclude is ``a 
fundamental sovereign attribute,'' \68\ aliens initially seeking entry 
into this country lack even the right to due process.\69\
---------------------------------------------------------------------------
    \67\ See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 
U.S. 206, 210 (1953).
    \68\ Id.
    \69\ Landon v. Plasencia, 459 U.S. 21, 32 (1982) (``an alien 
seeking initial admission to the United States requests a privilege and 
has no constitutional rights regarding his application. . . .'').
---------------------------------------------------------------------------
    What process is due an alien who enters this country or obtains 
citizenship through fraud? Such a person should have no greater claim 
to procedural protections than an alien paroled into the United States 
pending a hearing on the issue of admissibility.\70\ Such an alien 
ought to be ``regarded as stopped at the boundary line and kept there 
unless and until her right to enter should be declared.'' \71\
---------------------------------------------------------------------------
    \70\ Cf. Leng May Ma v. Barber, 357 U.S. 185, 187-88 (1958).
    \71\ Kaplan v. Tod, 267 U.S. 228, 230 (1925) (Holmes, J.).
---------------------------------------------------------------------------
    When a naturalized citizen has committed fraud to obtain 
citizenship the Court has been similarly deferential to Congress, 
hewing to the rule of ``strict compliance with all the congressionally 
imposed prerequisites to the acquisition of citizenship.'' \72\ In 
Fedorenko it held that federal courts ``lack equitable discretion to 
refrain from entering a judgment of denaturalization against a 
naturalized citizen whose citizenship was procured illegally or by 
willful misrepresentation of material facts.'' \73\ Indeed, the Court 
has gone out of its way to reject ``lower court efforts to moderate or 
otherwise avoid the statutory mandate of Congress in denaturalization 
proceedings.'' \74\ A naturalized citizen subject to a denaturalization 
proceeding is entitled to due process. ``[A]liens who have once passed 
through our gates, even illegally, may be expelled only after 
proceedings conforming to traditional standards of fairness encompassed 
in due process of law.'' \75\ Similar due process requirements apply to 
deportation proceedings,\76\ although what process is due may vary with 
the circumstances.\77\
---------------------------------------------------------------------------
    \72\ Fedorenko v. United States, 449 U.S. 490, 506 (1981).
    \73\ Id. at 517.
    \74\ Id.
    \75\ Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 
(1953).
    \76\ See Wong Wing v. United States, 163 U.S. 228, 238 (1896).
    \77\ See Landon v. Plasencia, 459 U.S. 21, 32-34 (1982).
---------------------------------------------------------------------------
    An alien who procures citizenship or immigration status through 
fraud presents a special circumstance, for which the narrowest range of 
due process protections ought to apply. Fair procedures should be 
designed for the limited purpose of determining whether an alien 
accused of committing fraud actually did so. An affirmative 
determination would cause the alien to revert by operation of law to 
his former non-status; he would then not enjoy the full array of 
constitutional protections extended to citizens and those with lawfully 
obtained immigration status. Defrauding the country in order to enter 
it makes an alien indistinguishable from those paroled aliens who have 
``gained no foothold in the United States.'' \78\
---------------------------------------------------------------------------
    \78\ See Kaplan v. Tod, at 267 U.S. at 230.
---------------------------------------------------------------------------
    Treating aliens who procure immigration status or citizenship 
through fraud as if they were excludable aliens would have important 
implications for the war on international terrorism.
    First, this ``entry fiction'' supports Congress's recent grant of 
authority to detain terrorists and terrorist suspects. Under the USA 
PATRIOT Act,\79\ the Attorney General must detain any alien certified 
as a suspected terrorist.\80\ The Attorney General may make this 
certification if he has ``reasonable grounds to believe,'' \81\ that an 
alien has committed specified forbidden acts associated with terrorism. 
To be sure, certain administrative and judicial safeguards apply. The 
Act requires the Attorney General to begin removal proceedings, charge 
the alien with a crime, or release the alien within ``seven days after 
the commencement of such detention.'' \82\ If an alien is held solely 
because he is certified by the Attorney General under the Act and his 
removal is ``unlikely in the foreseeable future,'' \83\ the Attorney 
General is authorized to continue detaining him for six-month intervals 
``only if the release of the alien will threaten the national security 
of the United States or the safety of the community or any person.'' 
\84\ Furthermore, the Act directs the Attorney General to review the 
certification of an alien as a suspected terrorist every six 
months.\85\ The alien may submit a written request for reconsideration 
every six months, and such a request for reconsideration may include 
``documents or other evidence in support of that request.'' \86\ 
Judicial review is available only in habeas corpus proceedings,\87\ and 
the only Court of Appeals authorized to hear appeals under the Act is 
the D.C. Circuit.\88\ Congress has deemed these procedural safeguards 
to be all the process due to suspected alien terrorists. For those of 
that group who procured their immigration status or citizenship through 
fraud, this may be more process than is constitutionally required.
---------------------------------------------------------------------------
    \79\ P.L. 107-56 (Oct. 26, 2001),
    \80\ Id. at Sec. 412(x)(1).
    \81\ Id. at Sec. 412(x)(3),
    \82\ Id. at Sec. 412(x)(5).
    \83\ Id. at Sec. 412(x)(6),
    \84\ Id.
    \85\ Id. at Sec. 412(x)(7).
    \86\ Id.
    \87\ Id. at Sec. 412(b)(1),
    \88\ Id. at Sec. 412(b)(3).
---------------------------------------------------------------------------
    Second, regarding those who obtain immigration status or 
citizenship as excludable aliens can enhance the government's power to 
investigate terrorist cells in this country. The Fourth Amendment, 
which protects ``the people'' from ``unreasonable searches and 
seizures,'' has been given a narrower compass when applied to aliens 
than to citizens. As the Supreme Court has noted,`` `the people' seems 
to have been a term of art employed in select parts of the 
Constitution.'' \89\ In particular, the Court found that the language 
``suggests that `the people' protected by the Fourth Amendment, and by 
the First and Second Amendments, and to whom rights and powers are 
reserved in the Ninth and Tenth Amendments, refers to a class of 
persons who are part of a national community or who have otherwise 
developed sufficient connection with this country to be considered part 
of that community.'' \90\ Given this interpretation, the Court held 
that ``aliens receive constitutional protections when they have come 
within the territory of the United States and developed substantial 
connections with this country.'' \91\
---------------------------------------------------------------------------
    \89\ United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
    \90\ Id.
    \91\ Id. at 271.
---------------------------------------------------------------------------
    Verdugo supports the proposition that an alien who procures 
citizenship or immigration status through fraud is not entitled to 
Fourth Amendment rights. A person who lies to gain entry to our nation 
should not be deemed to have established ``substantial connections with 
this country.'' \92\ To suggest the contrary is inconsistent with 
common sense and the judicial respect for the congressional 
determination that aliens who lie to gain entry or citizenship should 
be removed. No one, simply by dint of arriving at our shores and 
remaining undetected for a period of time precisely because of his 
fraud, should be rewarded by enjoying the same rights as those who come 
here lawfully. Treating immigration cheats differently is consistent 
with the principle that immigration law in general consists of rules 
that ``would be unacceptable if applied to citizens.'' \93\
---------------------------------------------------------------------------
    \92\ Id. (emphasis added)
    \93\ Matthews v. Diaz, 426 U.S. 67, 79-80 (1976).
---------------------------------------------------------------------------
    It is axiomatic that a contract is void ab initio where there is 
``fraud in the execution,'' \94\ meaning that one party misrepresents 
an agreement's ``essential terms.'' \95\ An alien who falsely claims 
the right to enter the United States to study, perhaps at a flight 
school, and then commits terrorist acts misrepresents the ``essential 
terms'' of the agreement between him and this country. It follows that 
the agreement to let him enter is voId. He had no constitutional rights 
before entry. Should the law be construed to give him the benefit of 
his fraudulent bargain by extending him constitutional protections 
anyway?
---------------------------------------------------------------------------
    \94\ Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 32 (2d 
Cir. 1997).
    \95\ Restatement (Second) of Contracts Sec. 163, cmt. a (1981).
---------------------------------------------------------------------------
        iii. not all forms of centralization increase security; 
         decentralization can protect both security and liberty
    As horrific as the events of September 11th were, the 
damage to the United States was not catastrophic. The unprecedented 
loss of life and property was actually crippling only within limited 
geographic areas. Certainly, the resulting economic damages have been 
felt nationwide, as measured in the decline of stock prices, employment 
rates, airline passenger traffic, consumer confidence, and corporate 
profits. These economic damages have been driven by fear of uncertainty 
and vulnerability. As tremendous and widespread as these damages have 
been, the enemy nevertheless has not inflicted physical damage on our 
far-flung defense or production capabilities. Indeed, the 
decentralization of people, production capabilities, and defenses 
across a large land mass minimizes the potential for physical damages 
from terrorism.
    Fear, more so than physical damages, is the threat. This fear is 
prompted by localized concentration of populations and nationwide 
interconnectedness. Populations concentrate in cities, buildings, 
subways, stadiums, and aircraft and dispersed populations are 
interconnected through the mail system, water supplies, the food 
supply, the blood supply, and the financial system. Terrorism and the 
fear it generates have renewed interest in the quarantine, curfew, and 
the martial law powers of the states. Along with the powers of the 
federal government, these local powers remain an important feature of 
the federal system for responding to new forms of violence and threats 
to public health, as well as the fear of both.
    Although more centralized than a century ago, the United States is 
still not a centralized state like France. Moreover, as long as the 
constitutional structure remains intact, it cannot become a completely 
centralized state. Efficiency experts may think that fifty states 
represent much wasteful duplication of governmental services. Security 
experts, on the other hand, can appreciate the value of so much 
redundancy. With fifty states, each having its own government, its own 
law enforcement, its own emergency response resources, the federal 
system as designed by the Framers gives priority to security and 
liberty over efficiency.\96\
---------------------------------------------------------------------------
    \96\ . . . .the power surrendered by the people, is first divided 
between two distinct governments, and then the portion allotted to 
each, subdivided among distinct and separate governments. Hence a 
double security arises to the rights of the people. The different 
governments will control each other; at the same time that each will be 
controlled by itself.
    Federalist No. 51 (emphasis added).
---------------------------------------------------------------------------
A. Security and Liberty Need Not Be in Conflict
    Debate over the recently enacted USA PATRIOT Act \97\ was typically 
framed in libertarian terms as a contest between liberty and security. 
It has been difficult for many Americans (especially lawyers) to 
understand that security and liberty can be hand-maidens. Liberty and 
security naturally conflict in a centralized state; they need not and 
should not in a decentralized state such as the United States. When the 
Framers created a strong Executive, they faced the charge that the 
President's powers--said to be equal to those of a king--posed a threat 
to liberty. They responded that an energetic Executive is essential to 
the defense of the people's liberty,\98\ a view which has been 
confirmed by history and the opinion of the American people. Presidents 
have never been more esteemed by the American people than when, acting 
as Commander-in-Chief, they defend individual liberty by defending the 
nation's security.
---------------------------------------------------------------------------
    \97\ USA PATRIOT Act of 2001, Pub. L. No.107-56.
    \98\ See Federalist No. 70.
---------------------------------------------------------------------------
    The President's powers as Commander-in-Chief, standing alone, do 
not authorize him to take action within the United States.\99\ Acting 
under Congress' war powers, [100 the President can exercise 
considerably more power domestically that he could otherwise.\101\ The 
great danger, of course, is that military actions executed domestically 
pursuant to the war powers--whether or not constitutional--can inflict 
injustice on American citizens that otherwise would not be 
sanctioned.\102\
---------------------------------------------------------------------------
    \99\ See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 
(holding President Truman's order to seize steel plants in support of 
the Korean Conflict an unconstitutional violation of separation of 
powers, not justified by his powers as Commander-in-Chief).
    \100\ See n. 3, Part I.
    \101\ See Woods v. Miller Co., 333 U.S. 138 (1948) (upholding 
national rent controls under the war power even though the Housing and 
Rent Act of 1947 was adopted after the ``cessation of hostilities'' 
(although technically a state of war still existed) in World War II).
    \102\ See Korematsu v. United States, 323 U.S. 214 (1944) 
(upholding a conviction for violating a military order during World War 
II which imposed curfews, detention in relocation centers, and 
exclusion from certain areas on the West Coast on Japanese Americans.)
---------------------------------------------------------------------------
    Preserving both liberty and security rather than sacrificing one or 
the other requires wise and, therefore, non-panicked policy. 
Fortunately, the constitutional structure imposes restraints on the 
process, even when issues are not justiciable. As the recent enactment 
of the USA PATRIOT Act reflects, the legislative process is so 
constituted that it slows legislation and forces compromises in order 
to reach consensus. Although adopted relatively quickly following the 
terrorist attacks, some of the Act's important provisions had been the 
subject of discussion for some time.\103\ As the Chairman of the 
National Commission on Terrorism observed in presenting the report of 
the Commission to the Senate Foreign Relations Committee on June 15, 
2000, fifteen months before the terrorist attacks of September 
11th, the lack of well-considered policy threatens civil 
liberties: ``Our view is that in the event of a catastrophic event such 
as we are talking about, where you have tens of thousands of people 
dead, the pressures will be very great on the President and the 
leadership of this country to impinge on civil liberties unless they 
have done some contingency planning and thought it through ahead of 
time. . . .'' \104\
---------------------------------------------------------------------------
    \103\ See USA PATRIOT Act of 2001, Pub. L. No. 107-56, 
Sec. Sec. 206, 207 compared to Countering the Changing Threat of 
International Terrorism: Report of The National Commission on 
Terrorism: Hearing Before the S. Comm. on Foreign Relations, 106th 
Cong. 8 (2000) (discussing the Foreign Intelligence Surveillance Act of 
1978) and USA PATRIOT Act of 2001, Pub. L. No. 107-56, Sec. 416 
compared to Countering the Changing Threat of International Terrorism: 
Report of The National Commission on Terrorism: Hearing Before the S. 
Comm. on Foreign Relations, 106th Cong. 22 (2000) (Discussing foreign 
student monitoring provisions). The report of The National Commission 
on Terrorism, released in June, 2000, can be accessed through the U.S. 
Government Printing Office Website at: www.gpo.gov
    \104\ Testimony of Paul Bremer, Hearing Before the Committee on 
Foreign Relations, United States Senate; 106 Cong. 2d Sess., June 15, 
2000, www.access.gpo.gov/congress/senate at 5 (Emphasis added).
---------------------------------------------------------------------------
B. The Limits of Centralization and Security
    Since the attacks of September 11th, the knee--jerk 
reaction on the part of many has been towards greater centralized 
control. Underlying this reaction is the mistaken assumption that 
greater centralization would have prevented the attacks. The argument 
in favor of centralization ignores the consequences of concentration of 
power, which can be to escalate the damages if an attack is not 
prevented. Suppose the United States were as completely centralized as 
France, with all powers concentrated in one city like Paris. If in 
addition to being the political capital, Washington, D.C. was also the 
most populous city, the financial nerve center, and the single 
transportation hub, it would be the equivalent of Paris. In that 
situation, the combined attacks of September 11th would have 
been far more destructive to the country because the target would have 
been more centralized and concentrated. The physical and psychological 
damages would have been greater to the rest of the country precisely 
because of a greater dependence on the centralized target.
    Even if centralization per se were desirable, it must be recognized 
that the best security possible cannot immunize the country from 
terrorist attacks any more than security measures can eliminate crime. 
Charles Schnabolk, a well-known security consultant has consulted on 
terrorism threats to the World Trade Center over the years.\105\ A year 
ago, Schnabolk identified the greatest terrorist threat to the World 
Trade Center as ``Someone flying a plane into the buildings. Someone 
blowing up the PATH tubes from New Jersey and water coming in from the 
Hudson River.'' \106\ After the events of September 11th, he 
said, ``Everyone wants to believe that we can protect ourselves from 
terrorism--and we can't.'' The problem is the classic security problem: 
protecting certain targets may only divert criminal attacks to less 
protected targets. As Schnabolt has said, the purpose of electronic 
security systems ``is to get the criminal to go next door to the 
building that does not have them.'' \107\
---------------------------------------------------------------------------
    \105\ Richard Reeves, Security in the Homeland--A Tough Job, 
Universal Press Syndicate, Oct. 12, 2001.
    \106\ Id.
    \107\ Id.
---------------------------------------------------------------------------
    Among many potential targets of terrorism, some are unique, e.g., 
the White House, the Capitol, and the Supreme Court Building. Anything 
which is unique, i.e., one of a kind, represents a form of 
centralization. The greater the centralization or concentration of 
wealth and/or power, the greater the level of security required. Thus 
the White House, the Capitol, and the Supreme Court get greater 
security than post offices, not solely because high-level officials may 
be ``more important'' than postal workers, but because there is only 
one Capitol, one White House, and one Supreme Court, whereas there are 
many post offices. The relationship between concentration/
centralization and the need for security spreads across all levels of 
society. Even though there are many banks and armored trucks, they need 
more security than most residences because they are less numerous and 
contain more money than individual residences. ``That's where the money 
is!'' as Willy Sutton, the bank robber said when asked why he robbed 
banks. With greater centralization or accumulation of money and/or 
power and the need for greater security, comes the potential for 
greater damages if the security is breached.
    This is not to argue against every response that involves some 
greater centralization. Rather, it is to argue that centralization per 
se is not wise policy. Thus, the Congress has debated whether airport 
security should be completely federalized/centralized by making 
security personnel federal employees or whether instead security should 
be governed by federal standards but administered by private 
contractors. The argument against making the security personnel federal 
employees is that degree of centralization actually undermines 
security.
C. Centralized Coordination; Decentralized Execution
    Centralized coordination differs from centralized control. The 
federal government certainly has centralized control over the nation's 
defenses. Under Article Two, Section 2 of the Constitution, the 
President commands not only the military services, but also ``the 
militia of the several States, when called into actual Serves of the 
United States.'' The federal government, however, does not and can not 
control all the many resources which contribute to the nation's 
defense, such as the emergency medical response services. Nevertheless, 
federal agencies such as the Department of Health and Human Services 
serve as central points of data collection and dissemination which, 
when performing well, provide centralized coordination.
    In June, 2001, a simulated terrorism exercise, called ``Dark 
Winter,'' played out the consequences of the intentional release of the 
deadly smallpox virus in several cities. Governor Frank Keating, who 
took the role of a governor, testified about the lessons learned from 
this simulation.\108\ Governor Keating said the first lesson was ``that 
in virtually every possible terrorism scenario, first responders will 
be the local.'' \109\ The central problem preventing their working as a 
team was communication.\110\ The final conclusion and strongest lesson 
was simply this: ``Resist the urge to federalize everything.'' \111\
---------------------------------------------------------------------------
    \108\ Frank Keating, Gov. of Oklahoma, Testimony Before the 107th 
Congress House Committee on Government Reform; Subcommittee on National 
Security, Veterans Affairs, and International Relations (July 23, 
2001).
    \109\ Id. Local government and law enforcement agencies were the 
ones with the power to impose and enforce quarantines, curfews and 
states of martial law, to disseminate information through local media 
and to collate and forward epidemiological data to federal agencies 
such as the Centers for Disease Control in Atlanta. Local law 
enforcement would be the ones to discover, preserve and secure any 
available crime scenes of evidence.
    \110\ Id. The one central problem which emerged in Oklahoma City 
was that of communications. From the initial response effort through 
the final body recovery, it was noted that the many different radio 
frequencies and institutional policies in play all too often left many 
participants in the effort in the dark concerning vital decisions that 
should have been shared universally. This was remedied in part--but 
only in part--by the creation of a unified command center which invited 
key representatives from all of the agencies involved to frequent 
information briefings and discussions on tactics. The rapid and 
accurate flow of information--both internally among government agencies 
and externally to the public--is absolutely essential.
    \111\ Id. Perhaps the strongest lesson from Oklahoma City--and 
perhaps the most worrisome outcome from the Dark Winter exercise--
concerns the almost instinctive urge common to officials of federal 
agencies and the military to open the federal umbrella over any and all 
functions or activities. Simply put, the federal government all too 
often acts like the 500 pound gorilla.
    In Dark Winter, we encountered this tendency as soon as state 
National Guard units were activated in response to the bio-terrorist 
attack. The function of those units--imposing curfews and quarantines 
and keeping public peace--were exclusively local in nature. Still, many 
of the participants sought to call the Guard into federal service 
immediately. I want to thank Senator Nunn, who played the role of the 
President in the exercise, for resisting this temptation and deciding 
not to federalize the Guard. (Emphasis added).
---------------------------------------------------------------------------
D. Concentrating on ``Core Competencies''
    In the current war, the great difficulty lies in distinguishing 
what should and should not be federalized or centralized. As many 
American businesses have decided, it is good policy for corporations to 
concentrate on their ``core competencies,'' i.e., do only what they do 
best. Indeed, that just happens to be the organizational design of the 
Constitution, giving powers to the federal government that only it 
could do well. As illustrated by the following observations, devolving 
or shedding extraneous responsibilities from the center allows national 
security forces and federal law enforcement to concentrate on their 
primary responsibilities.
    1. The Military: The federal government has the ultimate 
responsibility for defending the nation from foreign attack and 
domestic civil disorder. Against foreign attack, the military stands at 
the forefront; in matters of domestic order, the military is the last 
resort. Recently, however, the specter of militarizing law enforcement 
has been raised when the Chairman of the Senate Armed Services 
Committee asked whether the Posse Comitatus Act,\112\ which generally 
prohibits the use of the military for law enforcement purposes, should 
be repealed.\113\
---------------------------------------------------------------------------
    \112\ 18 U.S.C. Sec. 1385.
    \113\ See Hearing on the Department of Defense's Role in Homeland 
Security: S. Armed Services Comm., 107th Cong. 4 (2001) ( Chairman of 
the Armed Services Committee Sen. Carl Levin raised the issue with 
Thomas White, Secretary of the Army: ``Another overarching issue: 
Should the Posse Comitatus Act be revised or repealed?'' at 4 ).
---------------------------------------------------------------------------
    As discussed in Part I, foreign terrorists inside this country 
should be pursued under the war powers, not under law enforcement 
powers. If law enforcement agents are involved, they act in assisting 
national security actions, not law enforcement actions. That is just 
the converse of the situation addressed by the Posse Comitatus Act, 
which generally prohibits the use of the military to assist law 
enforcement. Thus the presence inside the country of foreign terrorists 
in no way implicates the Posse Comitatus Act. More importantly, 
militarizing law enforcement diffuses the military's mission and 
endangers the citizens' liberty.\114\
---------------------------------------------------------------------------
    \114\ See Federalist No. 8. The perpetual menacings of danger 
oblige the government to be always prepared to repel it--its armies 
must be numerous enough for instant defence. The continual necessity 
for their services enhances the importance of the soldier, and 
proportionably degrades the condition of the citizen. The military 
state becomes elevated above the civil. The inhabitants of the 
territories, often the theatre of war, are unavoidably subjected to 
frequent infringements of their rights, which serve to weaken their 
sense of those rights; and by degrees, the people are brought to 
consider the soldiery not only as their protectors, but as their 
superiors. The transition from this disposition to that of considering 
them as masters, is neither remote, nor difficult:(sic) But it is very 
difficult to prevail upon a people under such impressions, to make a 
bold, or effectual resistance, to usurpations, supported by military 
power.
---------------------------------------------------------------------------
    2. The FBI: The well--known difficulties of the FBI are at least in 
part due to expecting the Bureau to do too many things. If the Bureau 
has lost its focus, Congress must share much of the blame. Congress has 
imposed on the FBI wide-ranging responsibilities which result from too 
much federal criminal legislation that overlaps state criminal 
jurisdiction. Any resources the FBI devotes to crimes that are 
essentially state matters are resources that cannot be devoted to truly 
federal matters. Meanwhile, the FBI's responsibilities for domestic 
intelligence cannot be performed by the state law enforcement.
    Moreover, the more the FBI is involved in ordinary, local crime the 
greater concern arises that the Bureau is directing its surveillance 
capabilities at ordinary citizens. To the extent that the Bureau is 
focused on intelligence related to foreign threats, its surveillance 
powers generate less concern about the potential for the abuse. There 
has been at least one report, however, that the FBI is preparing to 
increase its surveillance capability potentially over all citizens by 
imposing a centralized routing system on the Internet.\115\ In addition 
to the civil liberties concerns, such a centralizing of communication 
actually undermines the defense to terrorism, as discussed below.
---------------------------------------------------------------------------
    \115\ Fox News reported and apparently overstated plans by the FBI 
supposedly involving a plan to change the architecture of the Internet, 
centralizing it by ``rout[ing] traffic through central servers that it 
would [allow it] to monitor e-mail more easily.'' See www.foxnews.com/
story/0,2933,37203,00.html
---------------------------------------------------------------------------
    3. Communication Infrastructure: Decentralized communication 
received a big boost from the September 11th attacks. The 
use of wireless telephones on hijacked aircraft and in the Twin Towers 
demonstrated their intelligence and emergency response value. Since 
September 11th, the military has shown great interest in 
already available technology which can provide secure communications 
based on the peer-to-peer concept of Napster.\116\ That same 
communication structure can fill the ``communication gap'' which exists 
among local emergency response agencies, as related by Governor 
Keating's report on ``Dark Winter.''
---------------------------------------------------------------------------
    \116\ See Leslie Walker, ``Uncle Sam Wants Napster!,'' The 
Washington Post, Nov. 8, 2001; Pg. E01.
---------------------------------------------------------------------------
    Through cutting-edge technology, communication is rapidly moving 
towards becoming ubiquitous. To the extent that it is based on or 
modeled after the Internet, this communication system will be 
decentralized. Although the Internet is not invulnerable,\117\ it is 
less vulnerable than more centralized communication systems, namely the 
telephone system. The origins of the Internet reflect a concern to 
create an alternative to the telephone system in order to have a 
communication system that would survive a nuclear attack. The Internet 
is a (con)federal system, with very minimal centralized control.
---------------------------------------------------------------------------
    \117\ See Thomas E. Weber, ``Terrorist Attacks Raise The Issue of 
How Best To Protect the Internet,'' The Wall St. Journal, Oct. 8, 2001, 
A15.
---------------------------------------------------------------------------
    Current developments in communications are leading what has been 
called the technology of decentralization.\118\ The Internet's 
distributed communication is now being recognized as a strategy for 
defending against terrorism.\119\ As demonstrated on September 
11th, however, the potential of the Internet is limited by 
the bottle-necks created by overloads on the centralized telephone 
system which is generally used to connect to the Internet. Instead of 
following the natural urge to centralize all communications that many 
in federal law enforcement have, the Federal Government could do much 
to defend against terrorism by centrally coordinating a rapid 
decentralization of the nation's communications system. This approach 
may seem as counter-intuitive as the President's proposed missile-
defense system. Both proceed on the premise that the best offense is a 
good defense. In fact, the Defense agencies have recently announced 
such a decentralized communications model.\120\ The federal government 
could coordinate the extension of that kind of decentralized 
communication infrastructure so that, for example, a mission-critical 
communication system would connect the nations' local emergency-
response resources of police, fire and health agencies with each other, 
with federal agencies, with public health experts, and with the public.
---------------------------------------------------------------------------
    \118\ Thomas E. Weber, ``A Primer on Technology That Has the 
Potential To Help Foil Terrorism,'' The Wall St. Journal, Sept. 17, 
2001, Pg. B1.
    \119\ See Kevin Maney, ``Could Internet be used as a weapon against 
bioterrorism?,'' USA TODAY, Oct. 24, 2001, Pg. 3B.
    \120\ On October 1, 2001, the United States Joint Forces Command 
published a document on the previously approved Global Information Grid 
(GIG), which is described as ``a globally interconnected, end-to-end, 
interoperable, secured system of systems.'' The document is posted at 
on a non-classified web site, https://jdl.jwfc.jfcom.mil

---------------------------------------------------------------------------
                                

                       Mandel, Lipton and Stevenson Limited
                                                Law Offices
                                    Chicago, Illinois 60602
                                                   December 4, 2001

Senator Russell D. Feingold
506 Hart Senate Office Building
Washington, D.C. 20510-4904

        Re: Farid Khorrami A77-928-803

    Dear Senator Feingold.

    I am a lawyer in Chicago and I represent Dr. Ahmad Farid Khorrami 
in matters related to his immigration status in the United States I am 
writing to you to provide information about Dr. Khorrami's case which 
might be useful to you and other Judiciary Committee members during the 
hearings into the Justice Department practices in the aftermath of 
September 11th Dr. Khorrami is a 46 year old native of Iran 
and citizen of the United Kingdom Dr. IGhorrami first came to the 
United States in 1973 or 1974 as a student. He earned a Bachelor's 
degree from Purdue University, attended Cornell University and MIT for 
a short period of time, earned a Master's degree from the California 
Institute of Technology, and a Master's degree from the University of 
California at Berkeley, where he also completed most of the 
requirements for a Ph.D. degree He then moved to the United Kingdom 
where he spent more than a decade, earning a Ph.D degree from Oxford 
University, becoming a British citizen, and working as a researcher at 
University College, London His studies and research have been in 
Engineering, Aeronautical Engineering, Aeronautics and Mathematics. He 
has been a teacher and has had a serious academic research career in 
Aeronautical Engineering, with a number of published research papers, 
as well as consultancy experience with industry in the United Kingdom.
    Pursuing a lifelong love of flying, Dr. Khorrami returned to the 
United States in the late 1990's in M-1 status to take pilot training 
at the University of North Dakota, from which he graduated. Dr. 
Khorrami had taken his first flying lessons while an undergraduate at 
Purdue almost a quarter century earlier. After graduation from North 
Dakota, the INS granted him M-1 practical training and he worked for a 
short time as a flight instructor.
    Dr. Khorrami met, fell in love with and married a United States 
citizen, and in July, 2000 applied for permanent residence as the 
immediate relative spouse of a United States citizen As part of the 
lengthy process of adjustment of status, Dr. Khorrami applied for and 
was granted permission to travel internationally, which is granted to 
all applicants for adjustment of status, and is called advance parole. 
He used the advance parole to travel to Canada in February and March of 
2001 and returned to the U.S.
    Six months later, on September 16, 2001, Dr. Khorrami was 
telephoned at home twice by someone claiming to be a reporter from the 
Chicago Tribune. Dr. Khorrami asked the ``reporter'' where he got his 
name, and the person said that he got it from the FBI. Dr. Khorrami 
then called the local office of the FBI to ask if They had given out 
his name and they claimed that they had not Dr. Khorrami described who 
he was and that he had briefly worked at two flight schools in Florida, 
and told the agent he would be happy to talk with him. The agent made 
arrangements to visit Dr. and Mrs. Khorrami the next day, Monday, 
September 17, 2001 at their home. Chicago FBI Special Agents Patrick 
Murphy and Josh Skul came to Dr. Khorrami's apartment on that Monday at 
9:OOa.m. and interviewed him for approximately three hours. At the 
conclusion of the interview, Dr. Khorrami asked if he were a suspect 
and Agent Murphy stated that if there had been any concerns, Dr. 
Khorrami would be leaving with them. He told Dr. Khorrami and his wife 
to go about their normal lives, and left.
    That same afternoon, Dr. Khorrami and his wife went to meet with 
his Supervisor at Skyway Airlines in Milwaukee. At the time of this 
meeting on Monday afternoon, September 17, 2001, FBI and INS agents 
began the questioning and interrogation of Dr. Khorrami which was to 
continue until 5:OOa.m. on Tuesday, September 18th. At the 
end of the interrogation, Dr. Khorrami was taken into custody. At all 
times, Dr. Khorrami voluntarily cooperated with government officials 
and answered all of their questions. While under the duress of this 
interrogation he was asked to take polygraph examinations on two 
occasions, and agreed to do so.
    While in INS/FBI custody, some time after 4:OOa.m. on September 
18th, Dr. Khorrami was served with a written notice revoking 
the parole that he had used six months earlier to travel. The notice 
contained no reason or specification of immigration violation on which 
the revocation was based. The warning attached to Dr. Khorrami's 
advance parole said that if his adjustment of status application was 
denied, he would be placed in removal proceedings. His application was 
not denied before the revocation was issued. Dr. Khorrami was then 
given a Notice to Appear in Removal Proceedings with a date and time to 
be set. The Notice to Appear alleged that he was a U.K. citizen who had 
last entered the United States on advance parole in March; that the 
advance parole had been revoked; and that as a result, he was an 
intending immigrant without proper documentation As a parolee whose 
parole has been revoked, Dr. Khorrami is not eligible for bond during 
the pendency of the removal proceedings, but is subject to release on 
parole, only as authorized by the District Director of the INS in 
Chicago, who is the person who revoked the parole and issued the Notice 
to Appear. These actions were taken despite the fact that Dr. Khorrami 
was an applicant for adjustment of status with an unadjudicated visa 
petition by his wife and his own unadjudicated application for 
permanent residence.
    On September 24th Dr. Khorrami was transferred to 
Chicago by the INS and has been in custody at the DuPage County Jail 
ever since. Since his transfer to the Chicago area on September 
24th nobody from the FBI has spoken with him. We only found 
out about the first hearing in Dr. Khorrami's case through inquiries 
made by Congresswoman Schakowsky's office as the notice of hearing was 
sent by mail to Dr. Khorrami ``c/o custodial office'' and was never 
received by him or his representative. Closed hearings, barring even 
Dr. Khorrami's wife, conducted with Dr. Khorrami in handcuffs have been 
held in the basement of the INS office in Chicago on October 
10th, October 24th, and November 14th. 
The hearing scheduled for November 28th was cancelled due to 
illness of the Immigration Judge. Through the push of the immigration 
judge on October 24th, the INS scheduled an interview on the 
pending adjustment of status/immediate relative visa petition on 
October 29th An INS officer interviewed and took a Q&A for 
one hour of Mrs. Khorrami, and then the officer and I went to the 
basement to the INS detention office where she took a two hour question 
and answer from Dr. Khorrami. The officer then handed me a pre-printed 
notice denying Dr. Khorrami's application for adjustment of status on 
the basis that the District Director who had revoked the advance parole 
of Dr. Khorrami lost jurisdiction over the adjustment of status 
application when the same District Director issued the Notice to Appear 
in Removal Proceedings. On November 7, 2001 at 9:OOp.m three INS agents 
appeared at Mrs. Khorrami's residence door without announcement by the 
doorman in her highrise building. One agent remained in the hallway and 
two agents came in and interviewed her for approximately one half hour 
regarding her marriage.
    Despite all of this, there has been no decision on the wife's I-130 
immediate relative visa petition although documentary and testimonial 
evidence of the bona fides e s of the marriage have been submitted, and 
no contrary evidence exists. If the I-130 immediate relative visa 
petition is approved by the INS, the Immigration Judge is then able and 
willing to adjudicate Dr. Khorrami's application for adjustment of 
status to conditional permanent resident of the United States Without 
an adjudication of the I-130 petition, the judge cannot hear evidence 
on the application. The hearing has been continued repeatedly because 
of the nonadjudication by the INS of the I-130 petition. There is no 
legitimate basis for either a further delay or a denial of this 
immediate relative visa petition; the delay is merely INS facilitation 
-of continued detention of Dr. Khorrami by instigation of other law 
enforcement authorities, probably the FBI, which could not itself hold 
Dr. Khorrami without charge.
    This case has involved no substantive charge of immigration 
violation or violation of criminal law. There was reason to interview, 
and perhaps interrogate and investigate Dr. Khorrami in midSeptember, 
there has been no lawful basis to detain him without a substantive 
charge for 2 \1/2\ months. He should not be in custody or in Removal 
Proceedings. We need Congress to press the Justice Department to 
restore law and order and to stop these denials of basic constitutional 
rights to due process of law. Thank you for your attention to this 
matter.
    Very truly yours,
                       Mandel, Lipton and Stevenson Limited
                                                Terry Yale Feiertag

                                

    Statement of Charles W. Gittins,* Judge Advocate and Lieutenant 
                     Colonel, Marine Corps Reserve

   executive order is unnecessary and unwarranted curtailment of due 
                                process
    No one who witnessed the murder of thousands by terrorists using 
airliners as guided missiles, would dispute the imperative that those 
responsible for those attacks on America be brought to justice. The 
President's November 13, 2001, Executive Order authorizing ``military 
commissions'' to selectively try those non-citizens the President deems 
subject to his order, however, is not the answer. The Order exceeds 
presidential authority, does not provide due process, and is 
unnecessary.
---------------------------------------------------------------------------
    * Charles VW. Gittins, a judge advocate and Lieutenant Colonel in 
the Marine Corps Reserve, specializes in representing military 
personnel in courts-martials and other military tribunals.
---------------------------------------------------------------------------
    As applied to Al Queda terrorist ``enemy combatants'' found outside 
the United States, the Supreme Court, in Application of Yamashita, 
concluded that the President's power to direct trial by military 
commission is ``without qualification. . .so long as a state of war 
exists--from its declaration until peace is proclaimed.'' The Congress 
has not declared war on Al Queda nor has the President requested such 
an explicit declaration. Absent the declaration of war required by 
Yamashita, the President arguably has no Constitutional or statutory 
warrant to employ anachronistic military commissions.
    For those persons lawfully in the United States accused but not 
under arms and, therefore, not ``enemy combatants,'' military 
commissions may not be employed where the civilian courts are open and 
functioning. Supreme Court cases dating from Reconstruction have 
uniformly, and correctly, circumscribed authority of military tribunals 
to try civilians located on American soil.
    As justification for the present incarnation of military 
commissions, the President and Attorney General have oft-cited Franklin 
Roosevelt's use of a secret military commission to try German saboteurs 
in the United States during World War II. The example, however, is 
inapt: the Germans were military combatants: a state of declared war 
existed between the two countries; and, the trial procedures followed 
in the military commission were the very same as procedures then-
applicable to courts-martials for American military personnel. Since 
then, the Articles of War, under which Roosevelt's military commissions 
were conducted, have been superceded by Congress' enactment of the 
Uniform Code of Military Justice in 1951 and notions of required 
military due process have substantially evolved.
    The promulgation of summary procedures that depart substantially 
from traditional notions of due process and appropriate commission 
procedure is a danger signal. During hearings on the Articles of War 
and wartime military commissions, the Army Judge Advocate General 
clearly articulated to Congress that military commissions and military 
courts-martials should be governed by identical procedures. Since last 
employed by President Roosevelt, military due process has substantially 
improved: the accused is entitled to representation-by a qualified 
lawyer; a specially qualified military judge presides over the trial; 
rules of evidence govern admission and exclusion of evidence; and, 
military appeals courts review courts-martials, including mandatory 
review by the United States Court of Appeals for the Armed forces where 
an accused is sentenced to death. The Order, reliant as it is on 
outmoded and superceded World War 11 procedures, has not accounted for 
the substantial evolution of due process and its present application to 
military courts.
    The administration also claims that protection of classified 
information compels the secrecy requirement and attenuation of basic 
procedural safeguards provided in federal courts anal courtsmartials. 
Such concerns, however, do not mandate the regressive trial procedures 
described in the Order. Federal courts and military courts-martials 
both are subject to and employ the Classified Information Procedure Act 
(``CIPA''), enacted by Congress with the support of the Executive 
branch. CIPA's purpose is to protect classified ``sources and methods'' 
from public disclosure. Military and civilian trials too numerous to 
count, including the just completed federal court trials of the 
terrorists involved in the 1993 World Trade Center bombing, have 
successfully balanced the need to protect classified information with 
the requirements of due process for the accused. Curtailment of due 
process, where permitted, must be made with surgical precision. We 
rightly should be skeptical of a non-specific ``national security'' 
talisman--such as provided President Roosevelt justification to 
imprison Japanese-Americans during World War 11 and for the secret 
exposure of soldiers to nuclear blast radiation during the 1950%.
    Finally, employment of jerry-built military commissions is 
unnecessary to successfully prosecute terrorists. If full and fair 
trials in military courts for combatants found outside of the United 
States is appropriate, the Uniform Code of Military Justice, Article 
18, provides full court-martial jurisdiction and well-established trial 
procedures. Court-martials, providing for adversarial pre-trial 
investigation; trial procedures providing for a qualified military 
judge presiding; rules of evidence assuring only relevant and competent 
evidence is admitted at trial; public trials, consistent with CIPA 
procedure; and, judicial review of convictions obtained in those trials 
will not, as the Attorney General recently suggested be a 
``spectacle.'' Instead, transparent public trials conducted pursuant to 
established law, under procedures applied equally to American service 
personnel, that are fair and perceived to be fair, will ensure that the 
results are accepted by world observers as more than ``victor's 
justice.''
    For non-citizen residents tried pursuant to presidential 
accusation, federal courts are fully capable of providing justice, as 
the recent World Trade Center bombing trial demonstrated. Exigency is 
no reason. to abandon exemplary American judicial process. Further, 
eroding the rights of a small class of accused U.S. residents upon bare 
accusations threatens the liberty of us all, as Thomas Paine observed: 
``He that would make his own liberty secure must guard even his enemy 
from oppression; for if he violates this duty he establishes a 
precedent that will reach himself.'' Congress rightly should exercise 
its oversight to prohibit employment of military commissions within 
United States borders and require that military trials conducted 
outside the United States comply with present notions of due process 
provided in courts-martial.

                                

   Article by William Glaberson, The New York Times, December 2, 2001

                                The Law
    tribunal comparison taints courts-martial, military lawyers say
    Former military lawyers say they are angered by a public 
perception, fed most recently by the top White House lawyer, that the 
military tribunals authorized by President Bush are merely wartime 
versions of American courts-martial, a routine part of military life 
with a longstanding reputation for openness and procedural fairness.
    In fact, the proposed tribunals are significantly different from 
courts- martial, the lawyers say, adding that confusion between the two 
has distorted the debate over the tribunals and unfairly denigrated 
military justice.
    ``It bothers me that people are thinking we try thousands of people 
this way in the courts-martial system,'' said Ronald W. Meister, a New 
York lawyer who is a former Navy lawyer and judge.
    ``We do nothing of the sort,'' he said. ``These commissions are a 
totally different animal.''
    John S. Cooke, a retired Army judge who is the chairman of the 
American Bar Association's committee on armed forces law, said military 
courts had been tainted by association with the tribunals, which many 
commentators, politicians and civil libertarians criticized as an 
effort to find a foolproof shortcut to a guilty verdict.
    ``There's been a lot of talk about military kangaroo courts,'' Mr. 
Cooke said. ``Having grown up in the courts-martial system, I'm rather 
offended by it, because it is a good system that provides more than 
adequate due process for the men and women in our military service.''
    Standard military courts closely resemble civilian courts in many 
ways, Mr. Cooke said. He added that they offered many of the 
fundamental protections that critics had said the president ignored in 
his Nov. 13 order authorizing the military tribunals. Courts-martial, 
for example, are governed by rules of evidence similar to those in 
civilian courts. They give defendants full rights to appeal a 
conviction, require proof of guilt beyond a reasonable doubt and 
require a unanimous decision to impose the death penalty.
    But those and many other protections were missing from the sketchy 
outline of the tribunals proposed in the president's order. The 
administration is working on more detailed rules, and officials have 
said the criticism is premature.
    But the order specified some details that distinguished the 
tribunals from courts-martial. The order Tribunal Comparison Taints 
Courts-Martial, Military Lawyers Say provides, for instance, that 
sentences--apparently including the death penalty--can be imposed by a 
two-thirds vote of the tribunal members.
    In courts-martial, the rules limiting the kind of evidence that can 
be heard are as strict as they are in civilian courts.
    Hearsay, for example, is limited in both civilian courts and 
courts-martial because it is often unreliable. But the president's 
order suggested that any evidence--apparently including hearsay would 
be admitted if it had ``probative value to a reasonable person.''
    ite the differences between the systems, administration officials 
have sometimes seemed to confuse the two.
    In an Op-Ed article in The New York Times on Friday, Alberto R. 
Gonzales, the White House counsel, defended the commissions, saying 
they would be fair.
    Mr. Gonzales continued with an assertion that appeared to liken the 
commissions to courts-martial.
    ``The American military justice system is the finest in the 
world,'' he wrote, ``with longstanding traditions of forbidding command 
influence on proceedings, of providing zealous advocacy by competent 
defense counsel and of procedural fairness.''
    Some critics say the administration appears to be fostering the 
confusion to blunt criticism of the tribunals.
    ``The confusion benefits the administration,'' said Eric M. 
Freedman, a professor of constitutional law at Hofstra University 
School of Law in Hempstead, N.Y. ``If the government can spread the 
impression that the tribunals are like the courts-martial, that would 
allay many fears.''
    In the battle of perception, both sides have been making statements 
that may not be accurate. Critics have said tribunals will conduct 
``secret trials.''
    Mr. Gonzalez wrote that the commissions ``will be as open as 
possible,'' though the president's order permits closed proceedings.
    It is not yet clear how far the administration will go in closing 
proceedings. But lawyers say the issue of whether the trials will be 
public also shows the differences between the two military systems.
    Courts-martial, like civilian courts, are presumed to be open, and 
judges close them only in extraordinary circumstances.
    Last spring, news organizations from all over the world attended 
preliminary hearings in the military justice system for Cmdr. Scott D. 
Waddle, the commander of a Navy submarine that accidentally sank a 
Japanese fishing trawler off Hawaii in February.
    By contrast, the last time the United States used military 
commissions, German saboteurs were tried, convicted and sentenced to 
death in closed proceedings in Washington in World War II.
    Some lawyers say such contrasts show how different the two systems 
are.
    They say the administration seems unaware that trials that appear 
to include shortcuts to win convictions may raise suspicions around the 
world.
    Edward F. Sherman, a former Army lawyer who was until recently the 
dean of Tulane Law School in New Orleans, said a prominent example was 
that under the president's order, defendants in the tribunals might not 
be permitted to select their own lawyers.
    Defendants in courts-martial are allowed to do so.
    Mr. Sherman said that and many other omissions raised questions 
about how commission trials would be perceived.
    ``If it appears they're assigning lawyers and just going through 
the steps and then imposing the death penalty,'' Mr. Sherman said, 
``there would be questions around the world about whether these kinds 
of trials comport with the basic due process we expect in our legal 
system.''

                                

                                           Randall B. Hamud
                                        San Diego, CA 92101
                                                  November 29, 2001

Honorable John Ashcroft
Attorney General of the
United States Department of Justice
Room 4400
950 Pennsylvania Avenue N. W.
Washington, D.C. 20530-0001

    Re: Civil Rights Violations of Arab/Muslim Detainees Mohdar 
Abdallah and, Osama Awadallah

    Dear Mr. Ashcroft:

    During your news conference on November 27th, you stated 
that you were unaware of any civil rights violations having befallen 
any of the approximately 1,200 people arrested as part of your dragnet 
of Arabs and Muslims. You further stated that all of the persons 
arrested were entitled to family visits and had counsel or the 
opportunity to retain counsel. Moreover, you expressed hope that 
``those who make allegations about. . .violation. . .of an individual's 
civil rights would not do so. . .without specificity. . . .''
    You were mistaken about the absence of civil rights violations, and 
you were mistaken about family visits and contact with counsel. At your 
invitation, I take this opportunity to provide you with the specifics 
which you claim to lack even though your subordinates have been aware 
of them since their occurrence. For example, during the news conference 
two FBI agents in the company of Mr. Jesse Berman, Esq., Mr. 
Awadallah's criminal defense attorney in New York, were at the New York 
Metropolitan Correctional Center (hereinafter ``MCC'') interviewing Mr. 
Awadallah about the violation of his civil rights while in federal 
custody.
    First, I begin by stressing that since their arrest as ``material 
witnesses'' on September 21, 2001, my clients' civil rights have been 
repeatedly violated by the incarcerating authorities, i.e., the prison 
officials and the local offices of the United States Attorney. Those 
violations began almost immediately when each of them was denied any 
opportunity to call a lawyer after his arrest in spite of having 
received Miranda warnings.
    Mr. Awadallah's family retained me on the afternoon of the 
21st to represent him. When I was finally able to interview 
him at MCC San Diego on the morning of September 22nd, he 
reported to me that he had requested to call an attorney, that his 
request had been denied, and that he was told that he would be taken to 
New York and jailed for ``a year,''
    I was unable to interview Mr. Awadallah on the 21st'' 
because when I visited the San Diego MCC that evening, I was initially 
told by the prison guards that no such person was there. I knew 
otherwise. Coincidently, that same afternoon I had been at the FBI 
headquarters on another matter; and the agents with whom I was dealing 
had confirmed that Mr. Awadallah had been arrested and was at MCC. 
After one and one-half hours of cajoling the FBI from my cellular 
telephone in front of MCC, I was finally told that, indeed, Mr. 
Awadallah was there and that I could see him. When I was finally 
directed to the attorney interview room on the third floor, I found a 
young man whom I thought to be Mr. Awadallah, whom I had never met.
    The young man proceeded to tell me that he had been arrested that 
afternoon as a material witness; that he had requested to call and 
attorney; that his request had been denied; and that he was told that 
he would spend the next year in jail in New York. Then we discovered 
that he was not Mr. Awadallah. He was Mohdar Abdallah. Notwithstanding 
that the incarcerating authorities had been denying him the opportunity 
to contact an attorney, one was now in his presence. Suffice it to say 
that he immediately retained me.
    After completing my initial interview of Mr. Abdallah, I went back 
downstairs and explained the mistake to the prison guards. I informed 
them I now represented Mr. Abdallah and requested to see my other 
client, Mr. Awadallah, I was told to leave the prison immediately. My 
protests were futile, and I left. I was finally saw Mr. Awadallah on 
the morning of September 22nd.
    Even after assuming a documented representational role of behalf of 
my clients, time and again the incarcerating officials have interfered 
with the former's ability to communicate with me and with my ability to 
with visit them. While they were material witness detainees, my clients 
were never allowed to call me by telephone when they needed to speak 
with me. And several times, I was denied access to them when I 
attempted to visit them both at MCC in San Diego and at MCC in South 
Manhattan.
    As the Attorney General of the United States, you should be 
especially sensitive to the importance of a represented inmate's right 
to free and unobstructed access to his or her attorney. Time and again, 
that has not been the case relative to my clients when they were being 
held as material witnesses. On September 23, 2001, I visited MCC in San 
Diego and was told that neither of them was there. After more cellular-
telephone cajoling with the FBI, I was told that, in fact, they were 
there and that I could see them. I note that their presentation to the 
magistrate was scheduled for September 24th. This was a 
deliberate attempt by the incarcerating authorities to interfere with 
my preparations for their coming court appearances. After completing of 
the magistrate's appearances on September 25th, sometime 
between that day and September 27th they were spirited out 
of MCC in San Diego. Not until the morning of October 1st 
did I learn that they were in New York. Both of my clients informed me 
that daring their transit to New York they had repeated requested to 
contact me and that their requests had been denied. Similarly, between 
October 24th and November 5th, when Mr. Abdallah 
was returned to San Diego to face incidental immigration charges, he 
again was denied any opportunity to call me while in transit. I had no 
idea of his whereabouts until he turned up in San Diego on the morning 
of November 5th.
    And I note that after Mr. Awadallah completed his material witness 
testimony in New York on October 15th and was rearrested and 
charged with allegations of misrepresentation before the grand jury, 
both Mr. Berman and Mr. Awadallah have encountered similar obstacles. I 
enclose for your information a copy of Mr. Berman's letter of November 
12, 2001, addressed to the Honorable Shira A. Scheindlin, District 
Court Judge, in which he catalogues his many complaints and 
frustrations. Note that his complaints include the inability of Mr. 
Awadallah to call Mr. Berman, the refusal to allow Mr. Berman to see 
Mr. Awadallah, and the continuing refusal of the incarcerating 
officials to allow Mr. Awadallah family visits. As October 
23th, Mr. Berman was denied access to Mr. Awadallah,
    This inappropriate behavior by the incarcerating authorities made 
Mr. Berman's preparation for the November 21st bail hearing 
even more problematical. It was as though the government was 
deliberately doing everything that it could to prevent him from fully 
preparing his client and his witnesses for that hearing. Such conduct 
is almost beneath comment.
    An even more egregious violation of Mr. Awadallah's civil rights 
occurred on the afternoon of October 4, 2001. At that time, Mr. Berman 
and I observed bruises on Mr. Awadallah's upper right arm, neck, 
wrists, and ankles. Mr. Awadallah informed us that the guards had hurt 
him.
    We observed his injuries during a 2:00 p.m. proffer session in a 
fifth-floor conference room at the offices of the United States 
Attorney in South Manhattan, 500 Pearl Street. Present at the session 
were the following United States Attorneys: Robin Baker, Chris 
Marvillo, and Rob Spencer. Also present were FBI agents Adam Cohen, 
Jacqueline McGuire, and Ryan Plunkett. All of them observed the 
bruises, as Mr. Berman and I pointed them out to those present. 
Further, at that time Mr. Awadallah told us that earlier that day he 
had been taken to the prison dispensary for xrays to determine whether 
he had any broken bones. And a blood sample had been taken from him, 
and possibly, he had received some sort of injection. In our presence, 
he still wore a bandage over the needle sticks) in his left arm vein.
    I was quite distressed at seeing his injuries. You see, on the 
morning of October 2nd before court proceedings were 
convened in South Manhattan, Mr. Awadallah had informed me that he had 
been beaten by the prison guards. Because of the order sealing those 
proceedings, I am not at liberty to disclose the substance of what 
occurred after I discovered this information. However, as the Attorney 
General of the United States, you may obtain this information by 
reviewing the transcripts of those proceedings. I invite you to do so.
    On the afternoon of October 4th I informed Ms. Baker and 
the others present that I wanted my clients moved from MCC before any 
further injuries were inflicted on any of them. I gave them twenty-four 
hours within which to do so. The next day, I was informed by Ms. Baker 
that my clients would not be moved. My response was to publicize the 
incident that afternoon in the hope that publicity would prevent 
further brutality. Apparently I had some modicum of success, as Mr. 
Awadallah later reported to me that a physician had examined him, that 
a prison official had met with him and given him tips about placating 
his guards, and that his physical treatment had somewhat improved. My 
thanks to the Fourth Estate.
    Finally, regarding my clients' overall treatment while at MCC's in 
San Diego and New York, I have several other complaints. In addition to 
the earlier discussed denial of family visits, they were denied 
television and radio privileges; reading and writing materials; mail 
privileges; and meals in conformity with their Muslim faith. I know 
full well that ``kosher'' meals, which my clients may eat, are 
available at both facilities and that such meals were repeatedly denied 
to them. As recently as November 5th, when meeting with Mr. 
Abdallah at the federal court holding facility in San Diego, he was 
served a ham sandwich for lunch. Further, at MCC in New York, the 
guards constantly harassed my clients and the other material-witness 
Arab/Muslim inmates by referring to them as ``f ------ ing 
terrorists;'' by making sexually inappropriate remarks to them when 
they are stripped naked and videotaped several times a week (for 
security purposes?); and by mocking and denigrating their religious 
practices (e.g., forcing them to replace the sheet on their bed 
whenever they were attempting to use it as a rug on which to conduct 
their Muslim prayers), and their Prophet (Praise be I-iis Name). I 
believe that one of my clients best described their conditions on 
incarceration. when he stated that ``people in this country treat their 
animals better than we were treated.''
    Before closing, please let me comment about your observation on 
November 27th that the absence of any civil rights lawsuits 
pertaining to detainees like my clients led you to believe that no 
civil rights violations had occurred. As an attorney, you know full 
well that the timing of such lawsuits depends on many factors other 
than your own impression about when they should be filed. And you also 
know that many of these proceedings remain under seal, which 
complicates any immediate filings.
    But let me assure you, sir, that such lawsuits are being readied. 
They are a natural consequence of your own words and deeds. As you 
yourself have said, ``all possible measures are being taken to detect 
and prevent future attacks to both incapacitate and deter would be 
terrorists.'' You have chosen to do by casting a nationwide dragnet 
woven from the threads of racial, ethnic, and religious profiling. You 
have chosen to do by advising your President to eavesdrop on the 
communications between profiled inmates and their attorneys. You have 
chosen to do so by casting aside the United States Constitution and the 
finest criminal justice system in the world and advising your President 
to empanel military tribunals for the trial and probable execution of 
accused who will have no right of judicial review. Doubtlessly, at the 
appropriate time and in the appropriate venues, the offices of the 
United States Attorneys across this great country will be very busy in 
the courts responding to the multitude of lawsuits engendered by your 
misguided policies.
    In conclusion, I hope that I educated you regarding the civil 
rights violations that have befallen my clients. I am certain that 
their situations are the rule rather than the exception among those 
presently incarcerated. I leave it to you to determine henceforth 
whether such violations will remain the rule rather than the exception. 
And a final note of legalese'. this letter is for informational 
purposes and is not to be construed to be a formal claim prefatory to 
the filing of any lawsuit against the federal government or any other 
state or local entity or any individual. If necessary, such formal 
claim or claims will be later filed under separate cover.
            Very truly yours,
                                           Randall B. Hamud
    CC:

        Sen. Patrick Leahy, Chair
        Senate Judiciary Committee
        By Facsimile: 202-224-9516 (w/encls)

        Senator Russ Feingold
        By Facsimile: 202-224-2725 (w/encls.)

        Representative Bob Barr
        By Facsimile: 202-225-2944 (w/encls.)

        Jesse Berman, Esq.
        By Facsimile: 212-941-0980 (w/o encls.) encls.

                                

                              Jesse Berman, Attorney at Law
                                   New York, New York 10013
                                                  November 12, 2001

Hon. Shira A. Scheindlin
United States Court House
500 Pearl Street
New York, NY 10007

    Re: U.S. v. Osama Awadallah 01 Crim. 1026 (SAS)

    Your Honor:

    As the November 21, 2001, bail hearing in this matter approaches, I 
want to provide an update on the status of my attempts (1) to have Mr. 
Awadallah be allowed to telephone me t at my office and (2) to have the 
MCC officials approve Mr. Awadallah's family so that they could visit 
him prior to the bail application.
    The history surrounding these two questions is as follows:
    The government has known since October 4, 2001, that I am Mr. 
Awadallah's attorney: I represented him at his October 4, 2001, proffer 
session with the government: I represented him at his October 10 and 
15, 2001, appearances before the grand jury; I represented him at his 
October 16, 2001, appearance before Judge Mukasey; and I represented 
him at his October 19, 2001, appearance before Magistrate Judge 
Gorenstein. On that same day, I filed my notice of appearance on behalf 
of Mr. Awadallah with the clerk of the Court.
    In mid-October 2001, Mr. Awadallah (who has been held in solitary 
confinement since September 21, 2001) filed with hi' counselor at MCC, 
Mr. Santiago, a written request that his father, Ismail Awadallah, and 
his brother, Jamal Awadallah (both of whom are United States citizens), 
be permitted to visit him.
    On October 23, 2001, I attempted to visit Mr. Awadallah at MCC and 
was denied access to him. After I waited in the ground-floor lobby of 
MCC for an hour, I was permitted to speak over the telephone to Les 
Owen, the in-house legal counsel at MCC. Mr. Owen, who refused to 
emerge from his ground-floor office to see me face-to-face, said that 
the government had not yet informed MCC that I was Mr. Awadallah's 
lawyer. I asked Mr. Owen to phone the magistrate's clerk's office, 
where my notice of appearance on behalf of Mr. Awadallah was on file. 
He refused, stating that only the U. S. Attorney's office, and not the 
Court, would tell MCC who could visit anyone.
    On November 1, 2001, I visited Mr. Awadallah at MCC, on 9 South, 
the Special Housing Unit. I asked the officers on 9 South if Mr. 
Awadallah's family had been approved to visit him. I was told to check 
with Counselor Santiago. Counselor Santiago was not in the counselor's 
office at that time. I was also told by the 9 South officers that Mr. 
Awadallah was allowed to phone me if he gave 48 hours written notice.
    On November 2, 2001, I phoned Mr. Santiago. Again I was told that 
he was not in his office at the time. I left Mr. Santiago a clear 
message to call me. He has never returned my call.
    On that same day, I phoned MCC counsel Les Owen and left him a 
message to call me. He has never returned my call.
    When I raised these issues in court on November 5, 2001, the Court 
suggested that AUSA Robin L. Baker look into it. On November 6 or 7, 
2001, 1 phoned Ms. Baker. She said she had spoken to Mr. Owen, who had 
informed her that Mr. Awadallah is not permitted to phone me at all, 
since my office is not out of town. Ms. Baker said that Mr. Owen would 
be writing me a letter explaining this policy. Mr. Owen has never 
written me.
    I visited Mr. Awadallah today at MCC, on 9 South. Prior to going up 
to 9 South, I asked the lobby desk officer whether Mr. Awadallah's 
family had been approved yet to visit him. He said that they had not 
been approved yet, because the computer had been down for the past 
three weeks.
    Mr. Awadallah's brother, Jamal Awadallah, is flying here from San 
Diego on November 19, 2001. The family is of modest means, and airline 
tickets purchased on short notice at Thanksgiving time are, of course, 
very expensive.
    I am requesting this Court to intervene to the limited extent of 
directing that Mr. Awadallah and his brother and I be permitted to meet 
on November 20, 2001 at MCC or, if that is impossible, at the court 
house, so that we might prepare for the bail hearing of November 21, 
2001.
            Respectfully yours,
                                               Jesse Berman

        cc: AUSA Robin L. Baker

                                

      Article by Hon. Orrin Hatch, in USA Today, December 6, 2001

                         Threat Warrants Leeway
   opposing view: administration's use of lawful powers follows the 
                             constitution.
    America is at war. Our adversary is a global terrorist organization 
that has imbedded hundreds of ``sleeper agents'' in America. These 
``sleeper agents'' have killed thousands of Americans and stand ready 
to launch further attacks if given the chance.
    The American people understand the threat we face. They know our 
leaders are acting out of a sincere concern for both our security and 
our liberty. They understand we must do everything in our power, 
consistent with our Constitution, to protect ourselves from those who 
aim not to change our way of life but to kill as many of us as 
possible. And they agree with noted Harvard law professor Lawrence 
Tribe when he arms that ``Civil liberty is not only about protecting us 
from our government. It is also about protecting our lives from 
terrorism.''
    The Senate Judiciary Committee recently held oversight hearings 
concerning the administration's efforts to protect America from 
terrorists. Those hearings culminate today with an appearance by the 
attorney general. He will confirm what countless other legal experts 
already have told the committee: The administration has aggressively 
used every lawful power at its disposal to investigate and prevent 
terrorist attacks. These powers are appropriate given the threat we 
face. And the use of these powers military commissions, alien detention 
and monitoring communications of suspected terrorists and their 
attorney agents does not violate our Constitution.
    Military commissions have been used since George Washington used 
them in the Revolutionary War. They have been used by other presidents 
including Franklin Roosevelt They have been authorized by Congress and 
repeatedly approved by the Supreme Court for use in trying war 
criminals.
    The 608 people detained by the justice Department have been 
detained for criminal offenses, immigration violations or because they 
are material witnesses in the terrorism investigation. The detainees 
have access to attorneys and to our courts. Independent federal judges 
have ruled that these individuals should not be released on bond. 
Publishing detainees' names would jeopardize the terrorism 
investigation, endanger lives and violate detainees' privacy. 
Ironically, the same civil liberties groups demanding publication of 
the detainees' names previously opposed the publication of the names of 
convicted sexual predators.
    The Justice Department's regulation lawfully allows the monitoring 
of conversations between extremely dangerous federal prisoners and 
those attorneys suspected of carrying messages for them. The 
Constitution does not require that we allow terrorists to conduct their 
murderous operations from within our prisons.
    Yes, the administration has been aggressive in using the 
Constitutional powers at its disposal to protect Americans. But given 
what happened Sept. 11, wouldn't it be unforgivably derelict if it did 
not?
    Sen. Orrin Hatch, R-Utah, is ranking minority member of the Senate 
Judiciary Committee.

                                

Statement of the Heritage Foundation, by David D. Rivkin, Jr*., Lee A. 
             Casey, and Darin R. Bartram, Washington, D.C.

Bringing AI-Qaeda to Justice: The Constitutionality of Trying AI-Qaeda 
               Terrorists in the Military Justice System
                           executive summary
    As the United States and its coalition partners execute diplomatic, 
financial, and military responses to the September 11 terrorist 
attacks, the legal options regarding the trial of members of the 
alQaeda terrorist organization are being increasingly discussed.\1\. As 
many as 1,000 individuals have been detained by law enforcement 
authorities in this country in response to the attacks.\2\ Reports that 
some of them may have been directly involved in the September 11 
conspiracy or were planning to carry out similar terrorist acts add a 
particular urgency to the discussion.\3\ Attorneys have been appointed 
for, or employed by, those who have been detained, and legal 
proceedings likely have begun with respect to their detention. At some 
point in the near future, the executive branch will likely have to 
decide whether to release them, deport those that are subject to 
deportation, or charge them with a crime. With respect to the last 
option, the government will have to decide what charges to bring 
against them and W what court system.
---------------------------------------------------------------------------
    * David B. Rivkin, Jr., Lee A. Casey, and Darin R. Bartram practice 
law in the Washington office of Baker & Hostetler, LLC. They frequently 
write on constitutional and international law issues. Messers. Rivkin 
and Casey served in a variety of legal positions in the Reagan and Bush 
Administrations.
    \1\ Osarna bin Laden, the acknowledged leader of the al-Qaeda 
network, may be killed in the fighting. If he is captured, the United 
States and other countries involved have several legal options 
available to them regarding his trial. See infra. But the legal 
analysis in this memorandum would apply to bin Laden if he were 
extradited to and tried within the United States.
    \2\ Neil A. Lewis, ``Detentions After Attacks Pass 1,000, U.S. 
Says,'' The New York Times, October 30, 2001.
    \3\ Philip Shennon and Don Van Natta, Jr., ``U.S. Says 3 Detainees 
May Be Tied to Hijackings,'' The New York Times, November 1, 2001.
---------------------------------------------------------------------------
    Some commentators have suggested that members of al-Qaeda 
apprehended in or extradited to the United States should not be treated 
as ordinary criminal defendants, but instead tried in military courts, 
either by regular courts martial or by specially constituted military 
commissions. Media reports indicate that this issue is already being 
considered by, among others, the staff of the Senate Committee on the 
Judiciary.\4\
---------------------------------------------------------------------------
    \4\ Richard Willing, ``Feds Explore How to Try Terrorism 
Suspects,'' USA Today, October 15, 2001, at 13A.
---------------------------------------------------------------------------
    From the government's perspective, the use of the military justice 
system to try al-Qaeda members involved in terrorist acts on behalf of 
a hostile foreign power offers several advantages. In particular, 
trials before military tribunals need not be open to the general public 
and they may be conducted on an expedited basis, permitting the quick 
resolution of individual cases and avoiding the disclosure of highly 
sensitive intelligence material, which would have to be made public in 
an ordinary criminal trial. A number of government officials have 
indicated that the previous trials of terrorist defendants, including 
the 1993 bombers of the World Trade Center, resulted in damaging 
disclosure of information on intelligence sources and methods, 
investigative techniques, and other matters that have made it more 
difficult for the United States government to uncover and prevent such 
plots in the future.\5\
---------------------------------------------------------------------------
    \5\ Although some measures can be, and have been, taken to protect 
classified evidence in the context of criminal trials, e.g., the 
Classified Information Procedures Act of 1980 (CIPA), 18 U.S. C. App. 
Sec. Sec. 1-16, constitutional imperatives ensure that the judicial 
proceedings in the ordinary federal courts cannot go too far down this 
path. The CIPA primarily constrains pretrial ``discovery'' 
opportunities. In the normal federal courts, the CIPA does not 
substantially alter the government's obligation under Article III of 
the U.S. Constitution and the Sixth Amendment to conduct a ``public 
trial'' and present to the jury, in open court, the facts on which it 
is relying to establish a defendant's guilt.
---------------------------------------------------------------------------
    Under the Uniform Code of Military Justice (UCMJ), and military 
court decisions interpreting it, the accused enjoy extensive due 
process protections, but their rights are not coextensive with the 
protections civilians enjoy in normal criminal trials held in the 
United States. Military tribunals are not required to offer the same 
due process rights guaranteed by the Constitution in Article III, the 
Fourth, Fifth, Sixth, and Fourteenth Amendments, as well as those 
articulated in various judicial decisions interpreting those 
constitutional provisions. For example, the precise contours of the 
Fourth Amendment exclusionary rule that flowed from Mapp v. Ohio, 367 
U.S. 643 (1961), and later cases do not apply in military courts, 
although military court decisions have imposed an analogous 
exclusionary rule in courts martial. It is, of course, possible for the 
President to incorporate all of the due process protections of the UCMJ 
and related legal precedents, or a great number of them, into any 
specially constituted military tribunal. Nevertheless, any al-Qaeda 
defendant will almost certainly object to the jurisdiction of a 
military commission and argue that he is entitled to trial in a non-
military court with exactly the same protections as other civilians.
    As a result, the constitutional basis for the use of military 
commissions, or even of regular courts martial, to try members of al-
Qaeda must be carefully considered. Although the practical benefits of 
military trials may be obvious, their use with respect to individuals 
not regularly enrolled in a military force represents a clear departure 
from normal legal processes in the United States and from some of its 
most fundamental judicial traditions. In addition, there could be 
diplomatic difficulties and other costs associated with trying al-Qaeda 
terrorists by military tribunal. If intelligence sources and methods 
would not be compromised by a public trial and the risk of additional 
terrorist actions were not substantial, the United States might prefer 
a public trial so that the rest of the world can evaluate the strength 
of the evidence against each defendant.
    For the foregoing reasons, this memorandum is not intended to 
present an argument for or against the use of military tribunals to try 
al-Qaeda terrorists; instead, it merely presents an analysis of the 
constitutionality of that option. In the end, only the executive branch 
will possess the necessary information to weigh the potential harm to 
America's intelligence apparatus and other risks of along public trial 
against the foreign policy ramifications or other potential effects of 
a military trial.
                             Brief Summary
    It has long been recognized that the Constitution, in Justice 
Arthur Goldberg's much-quoted phrase,'' is not a suicide pact,'' \6\ 
and that the government enjoys extraordinary power during wartime. As 
Chief Justice William Rehnquist has noted:
---------------------------------------------------------------------------
    \6\ Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-160 (1963).

        In any civilized society the most important task is achieving a 
        proper balance between freedom and order. In wartime, reason 
        and history both suggest that this balance shifts in favor of 
        order--in favor of the government's ability to deal with 
        conditions that threaten the national well-being.\7\
---------------------------------------------------------------------------
    \7\ William Rehnquist, All the Laws But One: Civil Liberties in 
Wartime (New York: Alfred A. Knopf, 1998), p. 222.

    At the same time, limiting the due process rights, particularly the 
right of public trial by jury, of individuals accused of capital crimes 
is a grave and extraordinary measure involving procedures that the 
Supreme Court has approved in only very limited circumstances. In 
particular, the only case in which the Supreme Court explicitly upheld 
the constitutionality of trying individuals, who were apprehended in 
the United States and who were not regularly enlisted in the armed 
forces of the United States or some other power by military commission, 
was decided during the summer of 1942--a time soon after the entry of 
the United States into the World War II.
    When the Supreme Court rendered this decision, Ex parte Quirin,\8\ 
the United States was engaged in a formally declared war, a point noted 
by the Court. To date, Congress has not declared war with respect to 
the armed conflict between the United States and al-Qaeda's primary 
state sponsor, Afghanistan's ruling Taliban; and there appears to be no 
immediate plan to do so. This raises difficult questions regarding 
whether America is nevertheless in a state of war for certain 
constitutional purposes, and if so, with whom it is at war. We believe 
the Supreme Court would defer to Congress's determination of those 
issues in a formal declaration of war and uphold the trial of saboteurs 
and spies, like those in Quinn, who violate the laws of war on behalf 
of a hostile foreign power.
---------------------------------------------------------------------------
    \8\ 317 U.S. 1 (1942).
---------------------------------------------------------------------------
    Although our focus in the rest of this memorandum is on the 
question of whether al-Qaeda members apprehended in the United States, 
or extradited to the United States, can be tried by military commission 
in the absence of a declaration of war, it is likely that the Supreme 
Court would allow the trial overseas by military commission of al-Qaeda 
members captured in Afghanistan, regardless of how it would treat 
defendants in this country. As discussed more fully later in this 
memorandum, international law would permit such treatment. Moreover, 
the Supreme Court has approved the use of military commissions to try 
enemies captured overseas for violations of the laws of war.\9\ In 
addition, the Court has suggested that a broad range of individuals 
(including ``civilians'') may be subject to military justice in an 
actual theater of operations.\10\
---------------------------------------------------------------------------
    \9\ See In re Yamashita, 327 U.S. 1 (1946) (Japanese general 
Tomoyuki Yamashita could be tried by military commission).
    \10\ See Reid v. Covert, 354 U.S. 1, 33 (1957) (``In the face of an 
actively hostile enemy, military commanders necessarily have broad 
power over persons on the battlefront. From a time prior to the 
Constitution the extraordinary circumstances present in the area of 
actual fighting have been considered sufficient to permit punishment of 
some civilians in that area by military courts under military 
rules.'').
---------------------------------------------------------------------------
    Whether the United States may constitutionally subject individuals 
associated with the alQaeda network to trial by military commission in 
the United States in the absence of a formally declared war is far less 
clear. There certainly is some support, based upon the applicable rules 
of international and constitutional law, for the proposition that a 
formal declaration of war by Congress would, in the current situation, 
be unnecessary to such proceedings, because a ``state of war'' between 
the United States and Afghanistan can nevertheless be said to exist. 
Much of Quinn's reasoning does not depend on a formal declaration of 
war, and there are other historical precedents that would support the 
creation of military tribunals to try al-Qaeda terrorists.
    At the same time, it has long been recognized that the authority 
available to the government in time of an ``undeclared'' or ``limited'' 
war is less expansive than that available during a declared war. 
Moreover, in the past 50 years, the Supreme Court has become more 
protective of civil liberties, and it is less likely to defer as 
extensively to the political branches in time of war or national 
emergency as it once did. Thus, heavy reliance on historical examples 
from the 19th century or one decision from the mid-20th century is ill 
advised.
    In the absence of a formal declaration of war, we simply cannot 
predict with a high degree of certainty which way the Supreme Court 
would rule. Because the matter is in doubt, we believe that Congress 
should formally declare war before the United States resorts to the use 
of military commissions, so as to place the use of such extraordinary 
measures on the best possible legal footing.
  Legal Precedents Regarding the Trial of Civilians in Military Courts
    In the past, the United States has treated individuals accused of 
terrorism as civilians, subject to trial in the federal courts 
established under Article III of the Constitution, with the full 
application of the Bill of Rights, including the right to a public 
trial by jury and the Federal Rules of Criminal Procedure. This was the 
case, for example, following the first attack on the World Trade Center 
in 1993. A total of 15 terrorists, including Sheikh Omar Abdel Rahman, 
an Egyptian cleric and leader of the radical group al-Gaina'a al-
Islamiya, were tried and convicted in the course of three trials in 
federal court in New York. Moreover, such treatment may have been 
constitutionally mandated, since civilians are not ordinarily subject 
to military justice and must be tried for federal crimes in Article III 
courts.
    This point was made clear by the Supreme Court shortly after the 
Civil War (during which civilians were subjected to trial by ``military 
commission'' in certain cases) in the landmark case of Ex pane 
Milligan.\11\ There, the Court ruled that military justice ``can never 
be applied to citizens in states which have upheld the authority of the 
government, and where the courts are open and their process 
unobstructed.'' \12\
---------------------------------------------------------------------------
    \11\ 71 U.S. 2 (1866).
    \12\ Id. at 121.
---------------------------------------------------------------------------
    The Quirin Case represents a narrow exception to the rule adopted 
by the Milligan Court that would permit individuals who are not 
enlisted in a regular military force to nevertheless be subjected to 
military law, and to be tried by military commissions. In that case, 
the Supreme Court ruled that eight Nazi agents, who had secretly 
entered the United States to undertake acts of sabotage, could be tried 
by a military commission established, pursuant to statute, by President 
Franklin D. Roosevelt.\13\ The Court carefully distinguished Milligan, 
noting that the defendant there was ``a non-belligerent, not subject to 
the law of war.'' In Quirin, by contrast, the individuals were 
considered to be ``belligerents'' or ``combatants,'' \14\ although not 
formally enlisted in the German Wehrmacht. Thus, they were classified 
as ``unlawful belligerents,'' subject to trial in military commissions 
for violations of the laws of war.
---------------------------------------------------------------------------
    \13\ There is no military tribunal or commission established at 
this time to try any captured terrorists. However, the President 
arguably could establish one without seeking additional authority from 
Congress if the constitutional prerequisites exist. In Quirin, the 
Supreme Court recognized that the Constitution ``invests the President, 
as Commander in Chief, with the power to wage war which Congress has 
declared, and to carry into effect. . .all laws defining and punishing 
offenses against The Law of Nations, including those which pertain to 
the conduct of war.'' 317 U.S. at 26. At that time, the Court found it 
unnecessary to determine whether the President had inherent authority 
to constitute a military tribunal to try the saboteurs, because he had 
been expressly given this authority by Congress through the Articles of 
War. See 317 U.S. at 27 (citing Articles of War 12, 15). The same 
relevant provisions of the Articles of War have been carried over into 
the Uniform Code of Military Justice (UCMJ). See 10 U.S.C. 
Sec. Sec. 818, 821; see also Michael A. Newton, Continuum Crimes: 
Military Jurisdiction over Foreign Nationals Who Commit International 
Crimes, 153 Mil. L. Rev. 1, 4 (1996) (``American commanders have 
authority to convene a general courtrnartial or a military commission 
to punish foreign nationals who violate the laws of war during an 
international armed conflict.''); Marc L. Warren, Operational Law: A 
Concept Matures, 152 Mil. L. Rev. 232, 305 (1996) (``The United States 
refrained from trying any of the [Somali] detainees (many of whom were 
unlawful combatants or common criminals) by military commission or 
general court-martial as it could have under Articles 18 and 21 of the 
UCMJ and under the law of anned conflict.''). While the use of the 
existing military court martial system to try al-Qaeda members would 
not present any constitutional issues that are different from those 
implicated by the use of military commissions, UCMJ strictures 
specifically define categories of persons who may be tried by courts 
martial, and unlawful combatants do not appear to fit into any of the 
current categories. See 10 US. C. Sec. 802 . Congress could, of course, 
amend the UCMJ to remove this obstacle. Moreover, nothing prevents the 
President, having created a specialized military commission to deal 
with unlawful combatants, to instruct it to operate in accordance with 
the standard procedures followed by courts martial.
    \14\ For the purposes of this discussion, the terns 
``belligerents'' and ``combatants'' are interchangeable. 
``Belligerents'' was more in vogue during an earlier era, but carries 
no different meaning in the authorities cited herein.
---------------------------------------------------------------------------
    It is this authority under which Osama bin Laden and his associates 
could be subjected to trial by military cormnission. There are, 
however, two conditions that must be satisfied before such proceedings 
can be employed. First, the accused individuals must be properly 
classifiable as ``unlawful combatants,'' a status that only arises in 
the context of an ``armed conflict.'' Second, the United States must 
itself be in a ``state of war.''
            Are Members of Al-Qaeda ``Unlawful Combatants''?
    Under the traditional rules of international law, individuals who 
engage in warlike activity, but who do not enjoy the immunities 
associated with enlistment in a lawful military organization, are 
treated harshly. As explained by Emmerich de Vattel, a leading 18th 
century scholar of international law who had a profound influence on 
the Framers of the U.S. Constitution:

        11When a nation or a sovereign has declared war against another 
        sovereign by reason of a difference arising between them, their 
        war is what among nations is called a lawful war, and in form; 
        and as we shall more particularly shew the effects by the 
        voluntary law of nations, are the same on both sides, 
        independently of the justice of the cause. Nothing of all this 
        takes place in a war void of form, and unlawful, more properly 
        called robbery, being undertaken without right, without so much 
        as an apparent cause. It can be productive of no lawful effect, 
        nor give any right to the author of it. A nation attacked by 
        such sort of enemies is not under any obligation to observe 
        towards them the rules of wars in form. It may treat them as 
        robbers. The city of Geneva, after defeating the attempt of the 
        famous Escalde hung up the Savoyards, whom they had made 
        prisoners, as robbers who had attacked them without any cause, 
        or declaration of war. Nobody offered to censure this 
        proceeding, which would have been detested in a formal war.\15\
---------------------------------------------------------------------------
    \15\ Emmerich de Vattel, The Law of Nations, 481 (Luke White ed., 
Dublin 1792). The Quirin Court noted a number of later authorities 
supporting the general proposition that ``unlawful'' combatants are 
generally considered to be subject to summary disposition. See 317 U.S. 
at 35-36 & n.12. See also Instructions for the Government of Armies of 
the United States in the Field, General Orders, No. 100, April 24, 
1863, reprinted in 7 John Moore, A Digest of International Law Sec. 174 
(1906) (`` [m] en, or squads of men, who commit hostilities. . .without 
being part and portion of the organized hostile army, and without 
sharing continuously in the war, if captured, are not entitled to the 
privileges of prisoners of war, but shall be treated summarily as 
highway robbers or pirates.'').

    Whether, under current international norms, an unlawful combatant 
may be killed out of hand, as Vattel suggests, is highly debatable.\16\ 
Nevertheless, it is clear that such individuals--both substantively and 
as a procedural matter--are not entitled to the same rights as lawful 
combatants (who must be treated as prisoners of war), or of non-
combatants.
---------------------------------------------------------------------------
    \16\ Protocol I Additional to the Geneva Conventions of 1949, which 
the United States has never ratified, but which embodies norms of 
customary international law in at least some respects, suggests that 
even unlawful combatants must be treated ``humanely'' and provided with 
certain basic due process guarantees. See Protocol I Additional to the 
Geneva Conventions of 1949, Art. 75(1) (4). This instrument does not, 
however, suggest that the use of a military tribunal or commission to 
try unlawful combatants would be impermissible.
---------------------------------------------------------------------------
    ``Lawful Combatants.'' The question of who is an ``unlawful 
combatant'' depends, in the first instance, on who qualifies as a 
``lawful combatant.'' Although irregular or ``guerrilla'' forces are 
not automatically excluded from this category, in order to be treated 
as ``lawful combatants'' or ``lawful belligerents'' (entitled to be 
treated as such under the laws and customs of war), a group must meet 
the following basic requirements according to the governing Hague 
Convention:

        1. They must operate under a recognizable command structure;
        2. Their members must wear a uniform or other ``fixed 
        distinctive emblem recognizable at a distance'';
        3. Their members must carry arms openly; and
        4. They must conduct their operations in accordance with the 
        laws and customs of war.\17\
---------------------------------------------------------------------------
    \17\ See Annex to Hague Convention (IV) Respecting the Laws and 
Customs of War on Land (1907), Art. 1. It should be noted that this 
requirement refers to the actions and institutional policy of the group 
involved, rather than to the acts of individuals. An individual may 
qualify as a lawful combatant, being associated with an armed force 
with a recognizable command structure, wearing distinctive emblems, 
carrying arms openly, and conducting its operations in accordance with 
the laws of war, and still be subject to prosecution for ``war crimes'' 
based on individual actions.

    The al-Qaeda organization, although it may or may not satisfy the 
first requirement, obviously fails to meet the last three. As a result, 
its members may be treated as ``unlawful combatants'' under 
international law.
    Similarly, under United States domestic law, al-Qaeda's members 
also may be considered to be ``unlawful combatants.'' The United States 
became a party to the Hague Convention (IV) on January 26, 1910, and 
the definitions contained in that instrument are fully applicable under 
U.S. law. They also are entirely consistent with the working definition 
of ``unlawful combatant'' adopted by the Supreme Court in Quirin. 
There, the Court explained that ``unlawful combatants'' are individuals 
who associate themselves with an enemy of the United States and who:

        [d]uring time of war pass surreptitiously from enemy territory 
        into our own, discarding their uniforms upon entry, for the 
        commission of hostile acts involving destruction of life or 
        property.\18\
---------------------------------------------------------------------------
    \18\ 317 U.S. at 36.

    The members of al-Qaeda who carried out the September 11 attacks, 
and their surviving compatriots, clearly entered the United States out 
of uniform and for the purpose of committing hostile acts involving the 
destruction of life and property here.\19\ The critical question, 
however, is whether they acted as enemies of the United States during 
``time of war.''
---------------------------------------------------------------------------
    \19\ Some authors have suggested that, given the gravity of 
offenses committed by terrorists of various stripes and the serious 
threat they pose to the security of the United States, all such persons 
should be tried by military commissions. See Spencer J. Crona, 
``Justice for War Criminals of Invisible Armies: A New Legal and 
Military Approach to Terrorism,'' 21 Okla. City U. L. Rev. 349 (1996). 
However, there is no support, either in the Constitution or in the 
Supreme Court's precedents, for subjecting individuals, who do not 
otherwise qualify as unlawful combatants on behalf of a hostile foreign 
power, to such proceedings. Civilians, even those accused of 
``terrorism,'' like Timothy McVeigh or Theodore Kaczynski, who do not 
fall within the category of unlawful combatant as defined by 
international law, must be tried in Article III courts.
---------------------------------------------------------------------------
                       Does a State of War Exist?
                           international law
    Under both international and domestic law, the laws of war apply 
from the beginning of an international armed conflict until its 
conclusion.\20\ There is little doubt that, as an international law 
matter, an armed conflict now exists between the United States and, at 
a minimum, the Taliban regime in Afghanistan, and that this conflict 
has existed at least since September 11, 2001.
---------------------------------------------------------------------------
    \20\ See Yamashita, 327 U.S. at 11-12. The issue here is more 
complex when a noninternational, or ``internal'' armed conflict, such 
as a civil war, is at issue. In such cases, the conflict must reach a 
certain level of intensity and duration before the laws of war will 
apply. See Antonio Cassese, ``The Geneva Protocols of 1977 on the 
Humanitarian Law of Armed Conflict and Customary International Law,'' 3 
Pac. Basin L. J. 55, 105, 112 (1984); ``The Spanish Civil War and the 
Development of Customary Law Concerning Internal Anned Conflicts,'' 
Current Problems of International Law: Essays on United Nations Law and 
the Law of Armed Conflict 288 (A. Cassese ed., 1975).
---------------------------------------------------------------------------
    This assessment is true even though the actual individuals who 
carried out the September 11 attacks appear to have been members of the 
al-Qaeda terrorist network. Al-Qaeda operates freely in Afghanistan 
with the knowledge, blessing, and support of the Taliban authorities. 
It controls a number of military bases in that country, and recent 
reports suggest that al-Qaeda may actually be the senior partner, vis-
a-vis the Taliban, in controlling Afghanistan.\21\ Significantly, al-
Qaeda forces are engaged together with Taliban forces in fighting the 
Northern Alliance, a loose coalition of resistance fighters. Moreover, 
the Taliban's most elite military unit, the 55th Brigade, is said to be 
comprised mostly of al-Qaeda members.\22\
---------------------------------------------------------------------------
    \21\ See Bob Woodward, ``Bin Laden Said to 'Own' the Taliban,'' The 
Washington Post, October 11, 2001, at Al.
    \22\ In addition, since 1996, al-Qaeda has carried out a number of 
armed attacks against the United States, including the destruction of 
U.S. embassies in East Africa; assaulting an American warship, the 
U.S.S. Cole, in the harbor of Aden, Yemen; and the bombing of the 
Khobar Towers in Dhahran, Saudi Arabia, which housed hundreds of U.S. 
service members. The Taliban was fully aware of each of these actions 
and yet failed to take action against alQaeda. Although a high level of 
control and coordination may generally be necessary in order to 
attribute the actions of a ``client'' organization to a supporting 
state, see Nicaragua v. United States 1986 I.C.J. 14 (Merits) (Jun. 27, 
1986) (suggesting the need for a high level of dependence and control 
before acts of irregular forces may be attributable to supporting 
state), that level appears to be fully present in this case.
---------------------------------------------------------------------------
    There clearly is an identity of interest and action between al-
Qaeda and the Taliban sufficient to justify the United States in 
characterizing the attacks of September 11 as an ``act of war'' and to 
justify a military response. Here, an analogy may be drawn to the 
response of the United States to the depredations of the Barbary 
pirates, operating out of Tripoli, in 1802. At that time Congress, on 
February 6, 1802, authorized the President to use force, including all 
``acts of precaution or hostility as the state of war will justify, and 
may, in his opinion require.'' Moreover, America's NATO allies have 
accepted this characterization and have, accordingly, taken action to 
``operationalise'' Article 5 of the North Atlantic Treaty, which 
requires that an ``armed attack'' against one member of the alliance is 
to be considered an attack on all.\23\
---------------------------------------------------------------------------
    \23\ See Statement by NATO Secretary General, Lord Robertson, on 
the North Atlantic Council Decision on Implementation of Article 5 of 
the Washington Treaty following the I I September Attacks against the 
United States, October 4, 2001.
---------------------------------------------------------------------------
    The fact that the United States has not chosen to declare war on 
Afghanistan, the Taliban, or alQaeda does not change the conclusion 
under international law that a state of war exists. International law 
has long recognized that ``a formal declaration is not necessary to 
constitute a state of war,'' \24\ and, in particular, that an anned 
attack creates a state of war without the necessity of the defending 
state declaring war. Again, to quote Vattel: ``[h]e who is attacked and 
makes only a defensive war, need not declare it, the state of war being 
sufficiently determined by the declaration of the enemy, or his open 
hostilities.'' \25\
---------------------------------------------------------------------------
    \24\ 7 Moore, supra note 14, at 171.
    \25\ Vattel, supra, at 478. At the same time, a formal declaration 
offers a number of tangible legal and practical benefits. In 
particular, it removes all doubt regarding the rights and obligations 
of both the belligerents and neutral states--which are far more 
ambiguous, or at least open to contest, in the context of an undeclared 
war.
---------------------------------------------------------------------------
    Consequently, as a matter of international law, the United States 
is at war and would be fully justified in treating the al-Qaeda members 
it encounters (and any Taliban forces who do not behave in a manner so 
as to qualify as lawful combatants) as ``unlawful combatants,'' subject 
to proceedings before a military court.
                           u.s. domestic law
    Whether a ``state of war'' can be said to exist between the United 
States and the Taliban/alQaeda as a matter of U.S. domestic law, 
however, is a more difficult question.
    Although the Quirin Court made clear that a ``state of war'' was 
necessary before individuals arrested in the United States could be 
subjected to trial by military commission, it did not specifically 
address the question of how this state of war was to be brought about. 
The text of the Constitution, however, does specifically address this 
issue--it grants to Congress the power to ``declare war.'' \26\ By that 
phrase, the Constitution's Framers understood the power to create a 
state of war between the United States and another power, for they 
carefully distinguished this power from the power to ``make'' war, 
i.e., to use military force, which is vested in the President as Chief 
Executive and Commander in Chief of the armed forces.\27\ This division 
of authority made eminent sense, since, unlike the use of armed force, 
a formal declaration of war worked a number of important legal changes 
(permitting, for example, the expulsion or internment of enemy aliens 
and the seizure of their property) more appropriate to the legislative, 
rather than the executive, branch.
---------------------------------------------------------------------------
    \26\ U.S. Const., Art. I, Sec. 8, cl. 11.
    \27\ See James Madison, Notes of Debates in the Federal Convention 
476-77 (Koch ed., 1966).
---------------------------------------------------------------------------
    The actual meaning of this constitutional provision, however, 
became a matter of dispute almost immediately among the Founding 
generation itself. For example, in 1793 James Madison and Alexander 
Hamilton clashed, in the ``Helvidius/Pacificus'' debate, over whether 
President Washington had the power, on his own authority, to issue a 
proclamation of neutrality with respect to the war between Britain, her 
allies, and Jacobin France. These early disagreements included the 
question of whether a declaration of war was necessary for any U.S. 
military action. During the conflict between the United States and the 
Barbary Pirates, for instance, the Jefferson Administration evidently 
took the position that a declaration by Congress was necessary before 
the United States could seize Algerian vessels on the high seas. 
Alexander Hamilton took particular umbrage at this view, writing that a 
state of war ``between two nations is completely produced by the act of 
one--it requires no concurrent act of the other.'' He further noted 
that the Constitution did not incorporate such a rule, claiming that 
``[t]he framers of it would have blushed at a provision, so repugnant 
to good sense, so inconsistent with national safety and inconvenience. 
. . .[W]hen a foreign nation declares, or openly and avowedly makes war 
upon the United States, they are then by the very fact, already at war, 
and any declaration on the part of Congress is nugatory: it is at least 
unnecessary.'' \28\
---------------------------------------------------------------------------
    \28\ See Alexander Hamilton, ``The Examination, No. 1, 17 Dec. 
1801,'' reprinted in, 3 The Founder's Constitution (Kurland & Lemer 
eds. 1987).
---------------------------------------------------------------------------
    Hamilton's view, at least for certain purposes, prevailed. The 
Supreme Court recognized very early that some form of a ``state of 
war'' could exist without a formal declaration by the United 
States.\29\ Barely 10 years after the Constitutional Convention, a 
naval war erupted between France and the United States--the so-called 
Quasi-War. In two cases involving the disposition of ships captured by 
the U.S. Navy during this conflict, the Supreme Court acknowledged that 
the United States could wage a limited war, which was not based on a 
formal declaration, but was instead governed by several federal 
statutes. It made clear, however, that a limited war brought only 
restricted war-related powers into play. As explained by Justice Chase 
in Bas v. Tingy
---------------------------------------------------------------------------
    \29\ The Supreme Court also has recognized that a ``state of war'' 
could be created by the actions of another power. See The Pedro, 175 
U.S. 354, 363 (1899) (recognizing that war with Spain began prior to 
actual declaration by Congress based upon declaration of Spanish 
government).
---------------------------------------------------------------------------
    Congress is empowered to declare a general war, or congress may 
wage a limited war; limited in place, in objects and in time. If a 
general war is declared, its extent and operation are only restricted 
and regulated by the jus belli, forming a part of The Law of Nations; 
but if a partial war is waged, its extent and operation depend on our 
municipal [domestic] laws.\30\
---------------------------------------------------------------------------
    \30\ 4 U.S. 37, 43 (1800).
---------------------------------------------------------------------------
    Similarly, as Justice John Marshall explained in Talbot v. Seeman
    The whole powers of war being, by the constitution of the United 
States, vested in congress, the acts of that body can alone be resorted 
to as our guides in this enquiry. It is not denied, nor in the course 
of the argument has it been denied, that congress may authorize general 
hostilities, in which case the general laws of war apply to our 
situation; or partial hostilities, in which case the laws of war, so 
far as they actually apply to our situation, must be noticed.\31\
---------------------------------------------------------------------------
    \31\ 5 U.S. 1, 28 (1801) (emphasis added).
---------------------------------------------------------------------------
    Thus, although the United States government can only obtain all of 
the potential ``war powers'' available to it under the Constitution 
through a formal declaration of war, it may nevertheless exercise some 
lesser measure of that power during a partial or limited war.\32\ With 
respect to any particular power, the test articulated by the Supreme 
Court is whether it is necessary or ``actually applicable'' to the 
level of hostilities Congress has authorized. A reasonable argument can 
be made that this lesser measure includes the right to subject unlawful 
combatants to trial by military courts, because the laws of war dealing 
with unlawful combatants are so basic to any level of hostilities-
dealing with the questions of who may lawfully take part in a conflict, 
and how they must be treated upon capture or defeat--that they always 
apply when the United States is engaged in an armed struggle. This 
would support the legality of subjecting unlawful combatants, such as 
the members of alQaeda, to trial by military courts where Congress has 
authorized hostilities, even though it has not formally declared 
war.\33\
---------------------------------------------------------------------------
    \32\ The Court has indicated, however, that during the limited war 
the relevant limitations must be scrupulously respected. In Little v. 
Barreme, 6 U.S. 170, 177 (1804), for example, the Supreme Court struck 
down a presidential proclamation authorizing the interception of 
vessels sailing from or to France, reasoning that Congress had, by 
statute, allowed only the interception of vessels sailing to French 
ports.
    \33\ It should also be noted that the Supreme Court has ruled that 
the United States could be considered to be ``at war'' without a formal 
declaration in the case of undeclared or ``limited'' wars with the 
Indian Tribes. See Montoya v. United States, 180 U.S. 261, 267 (1901) 
(``We recall no instance where Congress has made a formal declaration 
of war against an Indian nation or tribe; but the fact that Indians are 
engaged in acts of general hostility to settlers, especially if the 
Government has deemed it necessary to dispatch a military force for 
their subjugation, is sufficient to constitute a state of war.'').
---------------------------------------------------------------------------
    Nevertheless, subjecting civilians--even as unlawful combatants--to 
military justice, and particularly to the type of military commission 
at issue in Quirin, is an extraordinary measure in recent times. 
Military commissions were used in such conflicts during the early- to 
mid-19th century. In 1862, for example, 37 Dakota Sioux Indians were 
executed in Minnesota. These individuals were tried before a five-
member military commission for the massacre of settlers along 
Minnesota's western borderlands.\34\ Yet, there are relatively few 
instances of such proceedings since the 1860s. Quirin represents the 
only instance in which the Supreme Court specifically approved, in the 
face of a constitutional attack, the use of military commissions in the 
United States to try individuals not otherwise subject to military 
justice. Moreover, in the years after Quirin was decided, the Court 
returned to a far more circumspect attitude toward the government's 
ability to employ military justice vis-a-vis individuals not actually 
enrolled in military service. In Reid v. Covert (1952), \35\ for 
example, the Court ruled that the civilian dependents of armed service 
members, even when overseas, could not be subjected to military courts, 
noting that:
---------------------------------------------------------------------------
    \34\ See generally, Carol Chomsky, ``The United States-Dakota War 
Trials: A Study in Military Injustice,'' 43 Stan. L. Rev. 13 (1990) 
(criticizing the practice of using military tribunals for this 
purpose).
    \35\ 354 U.S. at 21.

        the jurisdiction of military tribunals is a very limited and 
        extraordinary jurisdiction derived from the cryptic language of 
        Art. I, Sec. 8, and, at most, was intended to be only a narrow 
        exception to the normal and preferred method of trial in courts 
        of law. Every extension of military jurisdiction is an 
        encroachment on the jurisdiction of the civil courts, and, more 
        important, acts as a deprivation of the right to jury trial and 
---------------------------------------------------------------------------
        of other treasured constitutional protections.

    Moreover, the fact remains that the Quirin Court itself addressed a 
situation that involved a formally declared state of war. Following 
Hitler's declaration of war on the United States on December 11, 1941, 
Congress immediately declared that a state of war existed between the 
United States of America and the government of Germany, in addition to 
authorizing the President to use ``the entire naval and military forces 
of the government to carry on war against the Government of Germany.'' 
This fact was noted by the Quirin Court in its decision, in particular 
with respect to its discussion of the constitutional issues presented 
by that case:

        The Constitution thus invests the President as Commander in 
        Chief with the power to wage war which Congress has declared, 
        and to carry into effect all laws passed by Congress for the 
        conduct of war and for the government and regulation of the 
        Armed Forces, and all laws defining and punishing offences 
        against The Law of Nations, including those which pertain to 
        the conduct of war.\36\
---------------------------------------------------------------------------
    \36\ 317 U.S. at 26 (emphasis added).

    Citing other opinions from World War I and II, Chief Justice 
Rehnquist recently wrote that ``[w]ithout question the government's 
authority to engage in conduct that infringes civil liberties is 
greatest in time of declared war.'' \37\ Thus, it is possible that the 
Court would have reached a different conclusion i11 1942 if Congress 
had not invoked the full war powers available to the United States, 
under the Constitution as well as The Law of Nations, through a formal 
declaration of war. Although Congress, in its Joint Resolution of 
September 18, 2001, has invoked a broad range of the war powers of the 
United States, authorizing 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,'' it has not formally declared 
a state of war to exist.
---------------------------------------------------------------------------
    \37\ Rehnquist, All the Laws But one, supra at 218.
---------------------------------------------------------------------------
    Perhaps even more important than the precise differences between 
the current situation and that in 1942 is that the Supreme Court has 
become far more protective of civil rights and civil liberties in the 
past 50 years. It can even be said that it views the protection of 
civil rights and civil liberties as its special and unique role in the 
national government and the federal scheme. The Pentagon Papers case is 
an example of how much more protective of civil liberties the Court was 
in 1971 than it was earlier in the century. The national security risk 
posed by the disclosure of a classified history of America's 
involvement in Vietnam was probably far greater than that posed by 
journalists and pamphleteers opposed to World War I. Nevertheless, the 
Court refused to defer to the judgment of the executive branch in 1971 
and created a standard that was either impossible for the government to 
meet (in the case of two concurring justices) or was at least much more 
difficult to meet.\38\
---------------------------------------------------------------------------
    \38\ New York Times Co. v. United States, 403 U.S. 713 (1971). It 
is true that the Pentagon Papers case involved a prior restraint of 
speech, and this does distinguish it somewhat from the facts of the 
World War I cases, but the majority that ruled against the United 
States in 1971 would not have likely upheld the conviction of Jacob 
Abrams in 1919. A simple comparison of the majority's discussion of the 
issues in Abrams v. United States, 250 U.S. 616 (1919) with that in the 
Pentagon Papers case will reveal a marked difference i11 the deference 
the Court accords the executive branch.
---------------------------------------------------------------------------
    Indeed, Chief Justice Rehnquist ends his book on civil liberties in 
wartime by contrasting the modern Court with earlier judges who seemed 
to adopt the Latin maxim, Inter arma silent leges: In time of war the 
laws are silent. His concluding remarks have an independent 
significance given his role on the High Court.
    [T]here is every reason to think that the historic trend against 
the least justified of the curtailments of civil liberty in wartime 
will continue in the future. It is neither desirable nor is it remotely 
likely that civil liberty will occupy as favored a position in wartime 
as it does in peacetime. But it is both desirable and likely that more 
careful attention will be paid by the court on the basis for the 
government's claims of necessity as a basis for curtailing civil 
liberties. The laws will thus not be silent in time of war, but they 
will speak with a somewhat different voice.\39\
---------------------------------------------------------------------------
    \39\ Rehnquist, All the Laws But one, supra at 224-25.
---------------------------------------------------------------------------
    Given the evolution of the Supreme Court's exercise of authority, 
we believe some justices of the Supreme Court today might not reaffirrn 
Quirin even if the facts were identical to that in 1942. This may also 
render earlier historical precedents of limited value in predicting 
which way the modern Court would rule.
    Despite this evolution in the Supreme Court's independent role, we 
believe a majority of the Court today would feel constrained to follow 
its decision in Quinn if Congress declared war on the Taliban/al-Qaeda. 
But the absence of a formal declaration of war might lead several 
justices to distinguish Quirin, even if we believe the distinction is 
not constitutionally significant. Modern judicial activists have 
discarded far more established and well-reasoned cases than Quirin. 
Thus, in the absence of a formal declaration of war, we simply cannot 
say with a high degree of certainty which way the Court would rule.
                               Conclusion
    Although Congress has not yet issued a formal declaration of war, 
there is no doubt that, as a matter of international law, an armed 
conflict currently exists between the United States and the Taliban/
alQaeda regime in Afghanistan. It also is clear that members of al-
Qaeda have acted as ``unlawful combatants.'' Whether they can be 
treated as unlawful combatants under the domestic law of the United 
States, and be subjected to trial by military courts or commission, 
however, depends upon whether a ``state of war'' exists pursuant to the 
United States Constitution.
    There is very early support in the judicial precedents of the 
Supreme Court, actually decided during the active political careers of 
the Constitution's Framers, suggesting that a ``state of war'' can 
exist between the United States and a foreign power without a formal 
declaration of war by Congress, albeit of a limited character. Since 
the question of who is a lawful and unlawful combatant is central to 
the law of war, whenever it is applicable, it can reasonably be argued 
that an undeclared war is sufficient, as a matter of constitutional 
law, to justify the use of military commissions to try such individuals 
in the United States.
    At the same time, the use of military courts to try non-military 
personnel is an extraordinary process that has been used in only very 
limited circumstances during U.S. history. The only direct and 
definitive authority permitting such trials remains the Supreme Court's 
decision in Ex parte Quirin. That case involved a state of formally 
declared war, and this point was noted by the Court as part of its 
ruling. Other practical questions might arise in the absence of a 
formal declaration of war, including with whom the United States is at 
war. A formal declaration of war would resolve such questions and allow 
the President to try al-Qaeda terrorists-who have violated the law of 
wars in military tribunals.
    In the absence of a formal declaration, we believe the correct 
constitutional answer is less clear, and that it is even less obvious 
how the Supreme Court would rule. Thus, we believe a formal declaration 
of war should be sought before the United States employs military 
courts to try al-Qaeda members.\40\ This would place such tribunals, 
which clearly represent a departure from this country's normal legal 
processes and traditions, on the best possible constitutional basis.
---------------------------------------------------------------------------
    \40\ It should be noted, however, that once a state of war is 
formally declared, there appears to be no requirement that Congress 
declare war against each state in which al-Qaeda operatives may be 
discovered. Once Congress has invoked the full range of war powers by a 
formal declaration, those powers would continue to apply until the 
armed conflict is concluded. During this period, under Quirin's 
teaching, anyone who actually qualifies as an unlawful combatant in the 
context of that conflict could be subjected to trial by military 
commission.

---------------------------------------------------------------------------
                                

Statement of Charles D. Siegal, Munger Tolles & Olson, Los Angeles, CA, 
                  on behalf of Human Rights Committee

     International Law and Constitutional Law Ramifications of the 
                              President's
    Military Order of November 13, 2001 I Dear Senator Leahy, Senator 
Feinstein and Other Members of the Judiciary Committee:
    The Human Rights Committee of the American Branch of the 
International Law Association writes to express its views concerning 
the November 13, 2001 Military Order on The Detention, Treatment, and 
Trial of Certain Non-Citizens In The War Against Terrorism (``Order''). 
For the reasons that follow, we consider the Order to be in violation 
of long-standing principles of international law and to raise 
significant and troubling United States constitutional law concerns.
    The Human Rights Committee of the American Branch of the 
International Law Association (``Human Rights Committee'') has a 
longstanding interest in the progressive development of the 
international legal order, the rule of law and the protection of 
fundamental human rights. It is comprised of individuals from the 
academic, public and private sectors who have extensive experience in 
the field of international law and, specifically, human rights law. 
Members of the Human Rights Committee have taught subjects such as 
international law, foreign relations law, human rights law and 
constitutional law and have written extensively in these fields. They 
have participated extensively at the trial and appellate court levels, 
including the United States Supreme Court, and have litigated cases 
involving the tights of aliens under domestic and international law. In 
the past, members of the Committee have testified before the Foreign 
Relations Committee of the United States Senate on a variety of issues, 
including human rights treaties.
    The Human Rights Committee would like to express its serious 
concerns regarding the--Order. While the Committee recognizes the 
importance of the struggle against terrorism, eve have substantial 
concerns that the Order violates the United States' obligations under 
international law and the Constitution.
                          1. international law
    Military tribunals are generally suspect under human rights 
treaties, international criminal law, and under established human 
rights law. We consider the Order to be in clear violation of each of 
those bodies of law.
                          a. human rights law
1. Due process
    The Order fails to comply with Article.14 of the International 
Covenant on Civil and Political Rights (ICCPR), to which the United 
States is a party and which sets forth a minimum set of customary and 
treaty-based human rights to due process guaranteed to all persons by 
customary international law, the ICCPR, and thus also by and through 
Articles 55(c) and 56 of the United Nations Charter. This treaty has 
become increasingly important as a source of human rights and the 
United States should, as a matter of policy, and must, as a matter of 
legal obligation, follow it.
    The rights guaranteed by the ICCPR include the right to a fair 
hearing by an independent and impartial tribunal, the right to know, 
the charges, the right to have defense counsel of choice, the right to 
examine and cross examine witnesses, the right to present witnesses and 
other evidence, and the right to an appeal to a higher tribunal. The 
Order fails to meet the ICCPR's minimum due process requirements in 
virtually all respects.
    The Order is also defective as it is overly broad and open-ended, 
with no defined standards of uniform application. Under this Order, the 
Secretary of Defense is empowered to be the sole authority to decide if 
there is reason to believe that any non-United States citizen 
(including long-time United States lawful permanent residents) anywhere 
in the-world might have committed or attempted to commit ``violations 
of the laws of war and other applicable laws.'' Individuals who are 
deemed subject to this Order include any non-citizen who has ``aided or 
abetted, or conspired to commit acts of international terrorism. . 
.that threaten to cause or have as their aim to cause. . .adverse 
effects on the United States foreign policy or economy.''
    Under the language of the Order, a long-term United States 
permanent resident who has. . .written articles and made speeches 
criticizing the foreign policy of the United States and calling for a 
worldwide boycott of American-made products and for other forms of 
direct action might be subject to prosecution before a 'military court. 
It is not enough to say that no United States Secretary of Defense 
would be so rash or foolish enough to pursue such a prosecution. The 
fact--that such an act could be treated as a terrorist act subject to 
the jurisdiction of the specially created military tribunal proves the 
point that such a system lacks the checks and balances necessary to 
prevent such an injustice.
    The Order denies the accused the basic international human right to 
appellate review. The Order dispenses with the need for a unanimous 
verdict by providing that a conviction and sentence, including the 
death penalty, maybe imposed upon only a two-thirds vote. This is in 
sharp contrast to the procedures followed not only by our federal and 
state courts, but also by our military courts under the Uniform Code of 
Military Justice. We note that Section 836 of the United States Code, 
relied upon by as authority for the Order, requires that military 
commissions shall, if practicable, apply the -principles of law and the 
rules of evidence recognized in the trial of criminal cases in the 
United States district courts. Nowhere does the Order articulate a 
basis why it is not practicable to apply the principles of law and-
rules of evidence followed in the district counts. Indeed, the recent 
successful prosecution in the Southern District of New York of the 
perpetrators of the African Embassy bombings demonstrates that the 
principles and rules followed in the United States district courts can 
most certainly be applied to other terrorists as well.\1\
---------------------------------------------------------------------------
    \1\Further, with respect to prisoners of war, the Order is 
violative of the 1949 Geneva Prisoner' of War Convention, especially 
articles 102 and 130.
---------------------------------------------------------------------------
                           2. non-derogation
    Major human rights treaties contain ``derogation'' clauses that 
govern the suspension of rights during states of emergency that 
threaten the life of the nation. The Article 4 of the ICCPR limits 
derogation as follows:
    1. Rights may be suspended only during a state of emergency that 
threatens the life of the nation. To justify a suspension of fair trial 
rights guaranteed by the ICCPR, the United States must prove that it 
faces a threat to the life of the nation. This is a very high 
threshold. An ongoing risk of terrorist violence is a permanent 
condition for contemporary democratic states. The ``life of the 
nation'' is not imperiled by the United States military action in 
alliance with the Afghan Government.
    2. Certain rights are non-derogable and may not be suspended even 
if the life of the nation is at stake. These include, most relevantly 
in the current context, the right to life; the prohibition on torture 
and cruel, inhuman and degrading treatment or punishment; the 
prohibition on retroactive criminal penalties; the right to recognition 
as a person before the law; and freedom of thought, conscience, and 
religion.
    3. Derogation measures may not be applied in a discriminatory 
manner. Where rights are suspended during a genuine state of emergency, 
derogation measures may not be applied in a manner that discriminates 
on the basis of race, color, sex, language, religion, or social origin.
    4. Any derogation measures must be strictly required by the 
exigencies of the situation. The ICCPR and regional human rights 
treaties establish a very strict rule of proportionality to emergency 
measures taken in derogation of human rights. Only measures that are 
vital to preserving the life of the nation are permitted.
    5. Measures in derogation of the right to fair trial and the right 
to take judicial proceedings to determine the lawfulness of detention 
are strictly limited and largely forbidden. has been suggested that his 
military commissions are necessary to protect jurors, However, there is 
no evidence that jurors in prior cases against Al Qaeda operatives have 
been menaced in any way. Successful prosecutions for Al1 Qaeda crimes 
have recently been completed both in Los Angeles and in New York. The 
federal courts are actively processing charges against persons arrested 
in the post-September 11 dragnet. The United States Government may find 
these prosecutions to be inconvenient, especially where it lacks 
evidence of the detainee's guilt- This is why the derogation clause of 
the ICCPR is narrowly written,
    The Administration has also suggested that one purpose of the 
commissions is to permit the use of coerced testimony inadmissible 
under the Fifth Amendment. The desire to use secret evidence is also 
cited, although the ordinary federal courts have provisions for use of 
classified information in carefully delineated circumstances.
    Decades of practice under the derogation clauses of human rights 
treaties have resulted in the emergence of important principles that 
apply to the Order. The Human Rights Committee, the UN treaty body that 
implements the ICCPR, issued an interpretive ``General Comment'' on the 
derogation clause in August 2001. Relevant passages of General Comment 
No. 29 state:

        Measures derogating from the provisions of the Covenant must be 
        of am exceptional and temporary nature. . . .
        Not every disturbance or catastrophe qualifies as a public 
        emergency which threatens the life of the nation. . . .
        It is inherent in the protection of (non-derogable] rights that 
        they must be secured by procedural guarantees, including, 
        often, judicial guarantees. The provisions of the Covenant 
        relating to procedural safeguards may never be made subject to 
        measures that would circumvent the protection of non-derogable 
        rights. . . . Thus, for example, as article 6 [on the right to 
        life] is non-derogable in its entirety, any trial leading to 
        the imposition of the death penalty-during a state of emergency 
        must conform to the provisions of the Covenant, including all 
        the requirements of articles 14 [fair trial] and 15 
        [prohibition on retroactive criminal
    Safeguards related to derogation. . . are based on the principles 
of legality and the rule of law inherent in the Covenant as a whole. As 
certain elements of the right to fair trial are explicitly guaranteed 
under international humanitarian law during armed conflict, the 
Committee finds no justification for derogation from these guarantees 
during other emergency situations. The Committee is of the opinion that 
the principles of legality and the rule of law require that fundamental 
requirements of fair trial must be respected during a state of 
emergency. Only a court of law may try and convict a person for a 
criminal offence. The presumption of innocence must be respected. In 
order to protect non-derogable rights, the right to take proceedings 
before a court to enable the court to decide without delay on the 
lawfulness of detention, must not be diminished by a State, party's 
decision to derogate from the Covenant.

    The United Nations Human Rights Committee, the European Court of 
Human Rights, and the Inter-American Court of Human Rights have 
examined many situations involving purported emergencies. A-recurring 
issue has been the trial of civilians, suspected of terrorist offenses, 
by secret military tribunals. For example, Peru. has been condemned by 
the Inter-American Court for this practice. An American citizen, Lori 
Berenson, was convicted of terrorist offenses by Peruvian ``faceless 
judges'' in a proceeding criticized by the United States. . . 
Government as a deprivation of fundamental human rights. When Turkey 
obtained custody of Abdullah Ocalan, the notorious leader of the PKK 
with a ``terrorist'' reputation to rival that of Osama Bin Laden, it 
placed him on trial before a National Security Court, but quickly 
amended its legislation to provide that only civilian judges could 
preside and held the trial in public. International human rights 
officials were given access to Ocalan in order to insure that he was 
not subjected to torture or cruel treatment The legality of Ocalan's 
trial remains under consideration by the European Court of Human 
Rights.
    6. No derogation is valid unless the state proclaiming the 
emergency provides official ' notification of the provisions from which 
it has derogated and of the reasons why it imposed these speck 
emergency measures.
                          B. Humanitarian Law
    Military commissions may be established in the aftermath of 
international armed conflict to try persons who have committed war 
crimes or crimes against humanity in connection with the conflict. The 
Nuremberg Tribunal is one example. * Military commissions were also 
established under Control Council Law No. 10 to try Nazi war criminals, 
some of whom were civilians who. . . had committed crimes against 
humanity, such as enslavement, as part of the Nazi war effort. . . 
Trial by such military commissions was approved in In re Yamashita, 327 
U.S. 1 (1946). The--defendant in Yamashita was a Japanese general 
charged with war crimes--a combatant enemy alien in a declared 
international armed conflict. It is noteworthy that Yamashita appears 
in the. same volume of the United States Reports as Duncan v. 
Kahanamoku, which struck dozen trials by military commissions of 
civilians charged with common crimes committed in the ``theater of 
war.'' \2\
---------------------------------------------------------------------------
    \2\One, of the habeas corpus petitioners in Duncan was convicted of 
assaulting military police at a shipyard; the other was convicted of 
fraud. The Court recognized that Hawaii was in the ``theater'' of the 
Second World War, but held this fact did not justify trial by military 
commission where the civil courts were capable of functioning.
---------------------------------------------------------------------------
    The United States could request the United Nations Security Council 
to establish an ad hoc international criminal tribunal to try crimes 
against humanity and other crimes of international significance 
committed by members of Al Qaeda or other suspected terrorists. Such 
trials Would be conducted in compliance with principles of 
international law relating to fair trial, as described below. The 
United States may not create it own ad hoc commissions, lacking 
guarantees of fundamental fairness, as an alternative, simply because 
terrorist crimes are perceived as unusually grave or difficult to 
prosecute. The United States should apply to Al Qaeda the policies it 
has willingly and successfully advocated for other groups that have 
committed gross violations of human rights, The International Criminal 
Tribunals for Former Yugoslavia and Rwanda have performed valuable 
services both in bringing violators of international criminal law to 
justice and in setting standards for the proper trial of suspected 
violators. A similar tribunal for suspected terrorists would serve the 
same salutary function.
                         II. Constitutional Law
    The Order raises serious constitutional concerns. Those concerns 
include:
    Whether the President may, without the approval by Congress, 
suspend habeas corpus? In Ex pane Milligan, 71 U.S. 22 (1866) the 
Supreme Court ruled that the military lacks any constitutional power 
even in a time of war to substitute its tribunals for civil courts that 
are open and operating, and held that only Congress may declare martial 
law. The Court subsequently reaffirmed this bedrock constitutional 
principle in the World War II era case of Duncan v. Kahanmoku, 327 U.S. 
304 (1946), when it invalidated the Governor of Hawaii's suspension of 
the writ of habeas corpus and.the implementation of military tribunals:

        Only when a foreign invasion or civil war actually closes the 
        courts and renders it impossible for them to administer 
        criminal justice can martial law validly be involved to suspend 
        their functions. Even the suspension of power under those 
        condition is of a most temporary character.

    Whether the President can create military commissions for use in a 
non-war context for prosecution of nonbelligerents for crimes other 
than war crimes? Case law indicates that whatever powers the President 
may have as Commander in Chief to order trial by a military. 
commission, such powers do not extend beyond wartime or a war context. 
The Order is open ended and contains no such limitations. Indeed by the 
President's own admission, the ``war'' on terrorism is without apparent 
end and is envisioned to last for the indefinite future. Without a 
formal declaration of war, there can be no official declaration of 
peace, and the Order might remain in effect for generations, to come.
    Whether the proposal to subject civilians to trial by military 
commission violates the text of the Fifth Amendment? The amendment 
reads: ``no person shall be held to answer for a capital 1or otherwise 
infamous crime unless on presentment by a grand jury, except in-cases 
arising in the lancer or naval forces, or in the militia, when in 
actual service in time of war or public danger, nor be deprived of 
life, liberty, or property, without due process of law'' (emphasis 
added). The argument is made that if United States military personnel 
are subject to military justice, then foreign terrorist suspects can 
expect no better. This argument fails for two reasons: (1) the 
Constitution itself authorizes courts martial for United States service 
personnel and does not authorize military trials for civilians 
suspected of terrorist or other common crimes;\3\ (2) the military 
commissions envisioned in the November 13 Order lack the protections 
guaranteed to military defendants in courts martial.
---------------------------------------------------------------------------
    \3\Common crimes'' is a legal term denoting criminal offenses that 
are not war crimes or political offenses. ``Common crimes'' may of 
course be unusual or extraordinary, as were the attacks of September 
11. Some crimes committed by terrorists are ``international,'' in one 
of two respects: (1) crimes such as airplane hijacking are the subject 
of treaties obligating states parties to prosecute or extradite 
suspects, regardless of the location where the crime was committed 
(universal jurisdiction and the principle of out dedere out judicare); 
(2) deliberate and systematic or widespread attacks against civilians 
by organized non-state entities may be ``crimes against humanity'' as 
defined in Article 7 of the Statute of the International Criminal Court 
(ICC Statute) These crimes are not ``war crimes,'' however. ``War 
crimes'' are only those committed in the context either of 
international armed conflict (a conflict between two or more states) or 
an internal armed conflict. Article 8 of the ICC Statute defines a long 
list of war crimes and explicitly states that it. ``does not apply to 
situations of internal disturbances and tensions, such as riots, 
isolated and sporadic acts of violence or other acts of a similar 
nature.''
---------------------------------------------------------------------------
    Whether proposed defendants who are not ``enemy aliens'' may be 
subject to military trio? Ex parte Quirin, 317 U.S. 1 (1942), provides. 
no support for the Order. The defendants, in Quirin were enemy aliens 
tried for war crimes. ``Enemy aliens'' is a technical legal term that 
denotes citizens of a state with which the United States is at war. 
They are subject to special. treatment under international law and 
United States statutes dating back as early as 1798. The Supreme Court 
based its finding of legality in Quirin squarely upon the international 
law of war, as it then existed. The Court emphasized the status of the 
defendants as enemy combatants, in a declared international armed 
conflict, who had forfeited their status as prisoners of war by 
removing their uniforms and engaging in acts of sabotage.
    None of the proposed defendants in the Commissions is an ``enemy 
alien.'' Nor is the Order limited to those enemy aliens charged with 
war crimes committed in the context of any armed conflict, either 
international or internal.\4\ Indeed, Zacarias Moussaoui, reportedly a 
prime target of the Order, is a citizen of France.\5\ He was admitted 
to the United States and was. detained in August 2001 in Minnesota for 
suspected violations of the immigration laws. He is not a combatant in 
any armed conflict. According to news reports, it appears that the 
Administration lacks sufficient evidence to try him in federal court. 
for any crime.
---------------------------------------------------------------------------
    \4\ The list of 93 persons charged with criminal offenses in the 
post-September 11, roundup; issued by the Department of Justice on 
November 27, 2001, reveals no charges relating. to war' crimes or 
linked to armed conflict of any type.
    \5\ Don van Natta, Jr., ``Debate Centers on Which Court Will Decide 
Fate of Arab Man,'' N.Y. Times, Nov. 22, 2001, B6.
---------------------------------------------------------------------------
    The United States is not at war with Afghanistan. United States 
military action in Afghanistan is being undertaken in alliance with the 
recognized Government. The United States has for many years recognized 
the Rabbani Government, and never recognized the Taliban as the lawful 
regime. The consistency of this United States position is reflected in 
the fact that the United States never placed Afghanistan on the State 
Department's list of ``state sponsors of terrorism.'' Even after the 
imposition of UN sanctions against the Taliban for harboring Osama Bin 
Laden following his indictment for the 1998 embassy bombings, the 
Secretary of State refrained from adding Afghanistan to the list of 
state sponsors of terrorism because the Taliban did not wield ``state'' 
authority in Afghanistan.
    As was the case with Panama at the time of the United States 
invasion, the de jure Rabbani regime in Afghanistan lacked control over 
most of the nation's territory at the time the United States intervened 
militarily. Acting in concert with elements allied with the de jure 
regime, the United States altered the situation on the ground so as to 
take control from a de facto regime (Manual Noriega, in the case of 
Panama; the Taliban, in the case of Afghanistan). Once seized, 
Panamanian General Noriega was tried by a federal district court, 
receiving the full protection of the Bill of Rights. He was not charged 
with ``war crimes'' and was not tried by a military commission. The use 
of military force to effect his arrest had no impact on his treatment, 
other than certain details concerning his conditions of detention 
(Noriega claimed to be a ``prisoner of war''). The fact that Noriega's 
prosecution took place in the context of a metaphorical ``war on 
drugs'' was of no legal significance.
    Whether non-citizens possess the same constitutional rights as 
citizens when subjected to criminal prosecution? The Order is defended 
on.the ground that it does not apply to United States citizens. Over a 
century ago, in the midst of the racist, anti-immigrant ``Chinese 
exclusion''. era, Congress enacted a statute subjecting undocumented 
Chinese immigrants to one year of imprisonment at hard labor, without 
providing a criminal trial with all the guarantees of the Bill of 
Rights. The United States Supreme Court invalidated this statute, in 
Wang Wing v. United States, 163 U.S. 228 (1896), as a deprivation of 
the immigrants' constitutional rights. In the rnidst of the Cold War, 
the Supreme Court described Wong Wing as standing for the principle 
that ``Under our law, the alien in several respects stands on an equal 
footing with citizens. . . .[I]n criminal proceedings against him he 
must be accorded the protections of the Fifth and Sixth. Amendments.'' 
Harisiades v. Shaughnessy, 342 U.S. 580 (1952). The Order cannot be 
sustained on any theory that foreigners who are not enemy aliens can be 
deprived of trial in the civil courts and subjected to military 
commissions, any more easily than citizens. The principle of equal 
protection under the Bill of Rights for non-citizen criminal defendants 
is deeply grounded in United States Constitutional law, and has been 
categorically affirmed by the Supreme Court during previous periods of 
harsh measures against perceived foreign threats to national security.
    Whether Article III forbids the president to send these criminal 
cases to military commissions? Pursuant to Article III of the 
Constitution, Congress has the authority to establish the lower federal 
courts. Only Article III courts staffed by judges with lifetime tenure 
and protection against salary reduction may hear ``Article III cases,'' 
which include prosecutions for federal crimes. There are only three 
exceptions to this principle: territorial courts, courts martial, and 
cases involving public rights such as federal benefits. The proposed 
military commissions are not courts martial; they provide far fewer 
guarantees of fairness than those established.in the Uniform Code of 
Military Justice, and they are designed to exercise jurisdiction over 
civilians. Quirin suggests an exception for war crime trials of enemy 
aliens during international armed conflict, but as explained above that 
situation does not exist in the United States at the present time.
    The Order is designed to strip the federal courts of their 
jurisdiction over certain federal crimes, and to commit these cases to 
trial by commissions established by executive fiat. The Order violates 
Article III in depriving the defendants of their constitutional right 
to be tried by Article III judges. Those judges have lifetime tenure 
precisely to insulate them from political pressure and to insure that 
unpopular defendants receive justice. The Order further violates 
Article III by invading the exclusive power of Congress to define the 
jurisdiction of the federal courts, and by invading the province of the 
federal judiciary to exercise the jurisdiction Congress has conferred 
upon it to try federal crimes.
    Whether the Military Commissions lack constitutional protections 
essential to protect against conviction and execution of the innocent? 
Every single Constitutional guarantee intended to prevent the 
conviction and punishment of the innocent is deliberately sacrificed in 
the design of the Commissions. There is no indictment by grand jury, no 
jury trial, no presumption,. of innocence, no privilege against self-
incrimination, no public trial, no right to counsel, of the defendant's 
choosing, no right to confront the evidence against one, no right to 
trial by an independent and impartial judge, no right to be convicted 
only by proof beyond a reasonable doubt. Conviction and death sentence 
may be imposed by two-thirds of the hand-picked commission members. 
There is no appeal. There are no rules of evidence. It is unclear what 
substantive law of crimes the commissions will apply. If the 
commissions create their own criminal code and apply it retroactively 
to detainees, the United States Government will also violate the 
prohibition on ex post facto laws. Congress possesses the exclusive 
authority to define federal crimes.
    For all of these reasons we believe that the Order to be in 
violation of international and constitutional law principles. We urge 
the President to rescind this order and to rely on the authority of the 
Federal court system to prosecute persons accused of terrorism.
            Very truly yours,
                                   Charles D. Siegal, Chair

Professor William Aceves
Jeffrey L. Bleich, Esq.
John Carey
Christina M. Cerna, Esq.
Dr. Cynthia Price Cohen
Professor Anthony D'Amato.
Professor Joan F. Fitzpatrick
Professor Thomas M. Franck
Sofia Gruskin, Esq.
Professor Malvina Halberstam
Professor Hurst Hannum
Professor Louis Henkin
Paul L. Hoffman, Esq.
Professor David Leebron
Professor James A.R. Nafziger
Professor Ved P. Nanda
Professor Jordan J. Paust
Arnold N. Pronto, Esq.
Professor W. Michael Reisman
Professor Alison Durides Renteln
Theodore Ruthizer, Esq.
Professor Louis B. Sohn
Judith L. Wood, Esq.

                                

           Statement of Human Rights Watch, Washington, D.C.

  Past U.S. Criticism of Military Tribunals and Denial of Due Process 
                                 Abroad
    Under President Bush's November 13th Executive Order on military 
commissions, any foreign national designated by the President as a 
suspected terrorist or as aiding terrorists could potentially be 
detained, tried, convicted and even executed without a public trial, 
without adequate access to counsel, without the presumption of 
innocence or even proof of guilt beyond reasonable doubt, and without 
the right to appeal.
    The U.S. State Department has repeatedly criticized the use of 
military tribunals to try civilians and other similar limitations on 
due process around the world. Indeed, its annual Country Reports on 
Human Rights Practices evaluate each country on the extent to which it 
guarantees the right to a ``fair public trial''--which it defines to 
include many of the due process rights omitted by the President's 
Executive Order. The Order may make future U.S. efforts to promote such 
standards appear hypocritical. Indeed, even if its most egregious 
failings are corrected in subsequent regulations, the text of the Order 
may become a model for governments seeking a legal cloak for political 
repression.
    Several countries about which the State Department has expressed 
concern include:
    Burma: The State Department described the Burmese court system, in 
its most recent Country Reports as ``seriously flawed, particularly in 
the handling of political cases,'' where trials are not open to the 
public and military authorities dictate the verdicts. SLORC Order 7/90 
allows commanders to try Buddhist clergy members before military courts 
for ``activities inconsistent with and detrimental to Buddhism.'' The 
Burmese government justifies all such trials by citing threats to 
national unity and security.
    China: The State Department has documented numerous means by which 
Chinese officials undermine due process. The United States has 
criticized China's system in part because defendants do not enjoy a 
presumption of innocence or its corollary rights, such as habeas 
corpus, standard of guilt, or the burden of proof necessary to ensure 
it. Trials involving national security, espionage or state secrets are 
conducted in secret. The government has broad authority to define 
crimes that endanger ``state security'' as it sees fit. Police can 
monitor client counsel meetings and defendants are not always allowed 
to confront their accusers. The most recent Country Reports state that, 
``the lack of due process is particularly egregious in death penalty 
cases.'' The lack of procedural safeguards has enabled China to engage 
in crackdowns on dissent that the United States has condemned, 
including a crackdown in predominantly Muslim areas that has ``failed 
to distinguish between those involved with illegal religious activities 
and those involved in ethnic separatism or terrorist activities,'' as 
the State Department's annual report on religious freedom concluded in 
2000.
    Colombia: Colombia's use of faceless prosecutors, judges, witnesses 
and attorneys in cases of narcotics trafficking, terrorism, kidnapping, 
subversion and extortion during the early and mid-1990s has been 
criticized in the Country Reports. The 1996 Report noted that, ``it was 
still difficult for defense attorneys to impeach or cross-examine 
anonymous witnesses, and often they did not have unimpeded access to 
the State's evidence.''
    Egypt: The most recent Country Reports criticized the manner in 
which military tribunals were used to try a wide range of offenses in 
Egypt, from non-violent dissent to acts of terrorism. The judges in 
these trials are military officers appointed by the Ministry of 
Defense. Verdicts may not be appealed, and are subject to review only 
by a panel of other military judges and then confirmed by the 
President. In 2000, two members of the ``Islamic Gihad group in Egypt'' 
who had been sentenced by military courts to death in absentia were 
executed. Civilians are often referred to military courts, some accused 
of membership in organizations that do not advocate or practice 
violence, but which are illegal. The 2000 Country Report stated that 
``this use of military courts. . .has deprived hundreds of civilian 
defendants of their constitutional right to be tried by a civilian 
judge.'' It added that ``military courts do not ensure civilian 
defendants due process before an independent tribunal'' and that the 
military officers who serve as judges in these courts ``are neither as 
independent nor as qualified as civilian judges in applying the 
civilian Penal Code.''
    Kyrgyzstan: The State Department has noted that in Kyrgyzstan, 
``the government frequently used the judicial process to eliminate key 
political opposition figures.'' Opposition leaders have been tried in 
closed military courts--although a civilian may be tried in military 
courts only if a codefendant is a member of the military. The decision 
of civilian courts to render an indeterminate verdict back to the 
Procurator for further investigation may not be appealed. 
The Country Report also stated that, ``in practice, there was 
considerable evidence of executive branch interference in verdicts 
involving prominent political opposition figures.''
    Malaysia: Malaysia's 1975 Essential (Security Cases) Regulations 
restrict due process by allowing the accused to be held for unspecified 
periods of time before being charged and by lowering the standards used 
for accepting self-incriminating statements as evidence. These 
regulations usually apply only-to firearms cases but may be applied to 
other criminal cases if the government decides that national security 
considerations are involved. The most recent Country Reports adds that 
``even when the Essential Regulations are not invoked, defense lawyers 
lack legal protections against interference.'' Many lawyers are charged 
with contempt of court after filing motions on behalf of their clients, 
particularly if they bring about allegations of prosecutorial 
misconduct.
    Nigeria: The State Department condemned Nigeria following the 
conviction and execution of author and minority rights activist Ken 
Saro-Wiwa and eight other activists before a specially constituted 
tribunal in which a military officer was one of three judges. The US 
ambassador was recalled for consultations and sanctions on the Nigerian 
regime were extended. Special tribunals in Nigeria, including military 
tribunals, became commonplace during the periods of military rule from 
1966 to 1979 and 1983 to 1999, and had jurisdiction over offenses such 
as civil disturbances, armed robbery, some categories of corruption, 
coup-plotting, and illegal sale of petroleum. Many military decrees 
also included ``ouster clauses'' providing that government decisions 
could not be questioned in a court of law. In the Country Reports for 
1996, the State Department noted that, in Nigeria, ``in practice 
tribunal proceedings often deny defendants due process.'' In a 
statement before the House International Relations Committee in 1998, 
Assistant Secretary of State for African Affairs Susan Rice stated 
that, ``military tribunals denied due process to political and other 
prisoners'' in Nigeria.
    Peru: Peru's use of military tribunals to try civilians accused of 
treason and terrorism has been repeatedly criticized by the State 
Department. The most recent Country Reports noted that ``proceedings in 
these military courts--and those for terrorism in civilian courts--do 
not meet internationally accepted standards of openness, fairness, and 
due process.'' Treason trials may be held in secret if the courts deem 
it necessary, and defense attorneys are prohibited from accessing the 
State's evidence files or questioning military or police witnesses.
    U.S. citizen Lori Berenson was tried and convicted of the 
terrorism-related crime of treason before a military tribunal. The 
State Department noted that her trial lacked sufficient guarantees of 
due process, and State Department Spokesman Phillip Reeker in a June 
2001 briefing stated that her military trial had ``egregious flaws.'' 
In 1996, Spokesman Glyn Davies said the United States ``deeply 
regret[ed] that Ms. Berenson was not tried in an open civilian court 
with full rights of legal defense, in accordance with international 
juridical norms'' and called for the case to be retried in an ``open 
judicial proceeding in a civilian court''--a point repeatedly 
reinforced by State and White House officials to their counterparts in 
Peru.
    Russia: The arrests and detentions of various government critics, 
including academics, human rights activists and journalists have been 
documented in the State Department's Country Reports. Espionage cases 
in particular have been subject to frequent abuses. In 1999, Igor 
Sutyagin, a researcher for the USA Canada Institute was detained on 
espionage charges. The Russian Federal Security Service (FSB) has 
claimed that Mr. Sutyagin violated a secret Ministry of Defense decree 
on secrecy. Evidence in his case was secret, and Mr. Sutyagin remains 
in detention. Other individuals who have been charged with treason 
include Aleksandr Nikitin, a retired Russian Navy captain and 
environmentalist. According the most recent Country Reports, 
``Nikitin's case was characterized by serious violations of due 
process.'' The Country Report also expressed concern about the trials 
of several non-Russians charged with espionage. As in the previous 
cases, the attorneys had trouble obtaining the details of the charges.
    U.S. citizen Edmond Pope, a businessman, was arrested by FSB agents 
in April 2000, convicted of espionage and sentenced to 20 years in 
prison for his efforts to purchase Russian technology that reportedly 
was publicly available, and not classified, as was claimed. His trial 
took place behind closed doors--a fact protested by the United States.
    Sudan: The United States has consistently condemned the government 
of Sudan for denying defendants the right to a fair public trial. As 
the 2000 Country Report on Sudan noted: ``Military trials, which 
sometimes are secret and brief, do not provide procedural safeguards, 
sometimes have taken place with no advocate or counsel permitted, and 
do not provide an effective appeal from a death sentence.'' The State 
Department has also expressed concern about special three-person 
security courts in Sudan, on which both military and civilian judges 
sit, and which deal with violations of constitutional decrees, 
emergency regulations, some sections of the Penal Code, as well as drug 
and currency offenses. These courts severely restrict the right of 
attorneys to effectively defend their clients, although they do permit 
defendants to appeal their sentences.
    Turkey: The State Department has expressed concerns about Turkey's 
State Security Courts (SSC), which have been used to prosecute leaders 
of armed political Islamic movement, those associated with armed 
Kurdish movements, as well as non violent critics of military or 
government policies. SSC's try defendants accused of terrorism, drug 
smuggling, membership in illegal organizations, and advocating or 
disseminating ideas prohibited by law, including those ``damaging the 
indivisible unity of the State.'' SSC's may hold closed hearings, and 
also allow testimony obtained during police interrogation in the 
absence of counsel to be admitted. The verdicts delivered by the SSC 
may be appealed to only a special department of the Court of Cassation 
that handles crimes against state security. Military courts may try 
civilians accused of ``impugning the honor of the armed forces'' or 
``undermining compliance with the draft.''
    Other countries have recently proposed legislation that limit due 
process. The ``Anti-Terrorism, Crime and Security Bill'' introduced by 
the Home Office in Great Britain on November 13 allows foreigners to be 
jailed without a hearing if police or security officials identify them 
as potential terrorists. If foreign nationals suspected of terrorism-
related activities cannot be removed to their own or a third country 
due to either administrative problems or provisions of the European 
Convention on Human Rights that prohibit the removal of those who may 
be subject to torture, they may be indefinitely detained. On November 
19, David Blunkett, Britain's Home Secretary, defended this law by 
arguing that it was not as severe as the Executive Order recently 
signed by President Bush.

                                

                                         Human Rights Watch
                                           Washington, D.C.
                                                  November 15, 2001

President George W. Bush
The White House
1600 Pennsylvania Avenue NW
Washington, D.C. 20500

    Dear President Bush,

    We are writing to express our profound concern with the new 
Executive Order can the Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism, issued on November 13, 2001 . We 
recognize that the existing state of' emergency in the United States 
permits certain derogations of internationally protected human rights. 
Nevertheless, the broad reach of the executive order sacrifices (ices 
fundamental rights to personal liberty and to a lair trial that go tar 
beyond what is permitted even in times of crisis.
    The United States has routinely condemned .such gross 
transgressions of basic due process rights when committed by other 
governments because they violate binding international law to which the 
U.S. government and over 140 other governments have subscribed. For 
example, the United Stales has:

         criticized the military court, in Peru that convicted 
        U.S. citizen Lori Berenson for terrorism without adequate due 
        process indeed, the State Department called on Peru to retry 
        the case ``in open civilian court with full rights of legal 
        defense, in accordance with international judicial norms.''
         condemned Nigeria for convicting and executing author 
        and environmental activist Ken Saro-Wiwa and eight other 
        activists alter a trial before a special military court 
        appointed by the government.
         criticized the manner in which military tribunals are 
        used to by accused terrorists in Egypt, pointing out in its 
        most recent annual report on human rights in that courtly that 
        ``military courts do not ensure civilian defendants' due 
        process before an independent tribunal.
         expressed great cancel shout trials of foreigners, 
        including Americans, for espionage before closed tribunals in 
        Russia.
    If the Executive Order is implemented, it will do permanent damage 
to the United States' ability to champion human lights and the rule of 
law around the world. It will undercut the U.S. government's efforts to 
protect tile rights of U.S. citizens before foreign tribunals. And It 
will undermine tile human rights standards that you have said are key 
to distinguishing terrorism from lawful conduct.
    The Executive Order raises important concerns regarding U.S. 
obligations under the International Covenant on Civil and Political 
Rights (ICCPR), which the U.S. ratified in 1992. Article 4 of the ICCPR 
does permit a state to take measures derogating Iron its obligations 
under the Covenant in time of public emergency that threatens the life 
of the nation and is officially proclaimed. The U.S. declaration of a 
national emergency on September 14 may be considered to have met that 
condition, although to our knowledge the required formal notification 
of the U.N. Secretary-General has not Occurred.
    However, a state's ability to derogate from the ICCPR is not 
unlimited. Derogation is never permitted Iron certain rights, such as 
the right to be free from torture (article 7) and tile prohibition of 
ex post facto laws (article 15). Otherwise, a stale may derogate from 
its obligations under the ICCPR only ``to the extent strictly required 
by tile exigencies of the situation'' and provided that such measures 
are not inconsistent with its other obligations under international 
law. The Human Rights Committee, the international body charged with 
interpreting tile ICCPR and monitoring compliance with it, states in 
its General Comment on article 4 that ``This condition requires that 
States parties provide careful justification not only their decision to 
proclaim a state of emergency but also for any specific measures based 
on such a proclamation. . . .[T]hey must be able to justify not only 
that such a situation constitutes a threat to the life of the nation. 
but also that all their measures derogating from the Covenant are 
strictly required by tile exigencies of the situation.''
    The U.S. must thus meet a high burden to show that the rights 
circumscribed under the Executive Order meet the standard for 
derogating from under the ICCPR. As discussed below the Executive Order 
fails to meet this burden as it sharply curtails the right to liberty 
and security of the person under article 9 and the right to a fair 
trial under article 14. These rights not only are found in 
international law but are central to the fundamental rights of due 
process in the United States.
                right to liberty and security of person
    Section 2 of the Executive Order permits the arrest and detention 
of persons on grounds that are vague mid overbroad. It allows taking a 
person into custody if the President his ``reason to believe'' that the 
individual look part in ``acts of international terrorism'' against the 
United States. Because neither tile meaning of ``international 
terrorism'' nor the nature of proscribed complicity is defined, the 
Executive Order is an extreme derogation of the ICCPR article 9 
prohibition against arbitrary arrest and detention. Indeed, given the 
possibility that these provisions could be interpreted to proscribe 
conduct that was not already criminal, the Executive Order could even 
run afoul of the ICCPR's non-derogable prohibition of ex post facto 
criminal laws.
    In addition, Section 3 of the Executive Order risks rendering ICCPR 
article 9 effectively meaningless by providing for conditions of 
detention that are distinct from those under existing U.S. law. Most 
significant are not the protections afforded detainees--including 
humane treatment, adequate food and water, access to health care--but 
those fundamental protections left off the list. There is no 
requirement, for example, that persons detained under the Executive 
Order be told the reason for their arrest or be promptly informed of 
charges against them; that persons deprived of their liberty be brought 
before a judicial authority who can decide on the lawfulness of their 
detention; or that those unlawfully arrested or detained shall have an 
enforceable right to compensation. Effectively the Executive Order 
allows for the arrest and indefinite detention of persons without 
charge and without legal recourse should they be unlawfully held. This 
is a clear abrogation of the fundamental right to liberty and security 
of person, well beyond the derogation permitted under article 4 of the 
ICCPR.
                         right to a fair trail
    Humand Rights Watch believes the open-ended provisions for the 
trial of persons under the Executive Order also exceed the limits of 
acceptable derogation of the right to a fair trial under international 
law. Although the mere establishment of a military commission and 
various procedures set out in the Executive Order are not necessarily 
in violation of international law, the absentee of key provisions 
regarding certain fundamental rights is a basis for extreme concern.
    Section 4 of the Executive Order states that at a minimum all 
trials shall be ``full and fair,'' but leaves the specifics open to 
future orders and regulations. For instance, there are no provisions 
for determining whether and to what extent trials should be public, nor 
even a requirement that judgments to made public. There is no 
requirement of a presumption of innocence, or that defendants have 
access to the evidence submitted against them, or even that proof of 
guilt be established beyond a reasonable doubt. It is left undetermined 
to what extent defendants will have access to legal counsel of their 
choosing, whether they will be able to communicate with counsel, and 
whether adequate time and facilities will be provided for a defense. No 
protection is provided against forced confessions.
    Sections 7 of the Executive Order states that a terrorist suspect 
``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'' before a U.S. or any 
other court. Indeed, there is not even a provision for appellate review 
by a separate military commission panel, only non-judicial review by 
the President or the Secretary of Defense as the President's designate. 
This denies the defendant the right to an appeal provided under 
international law, which is especially troubling because the Executive 
Order expressly contemplates military commissions handing down death 
sentences. It also denies the right to effective redress to all 
persons, including U.S. citizens, who might be affected adversely by 
the law.
    The comments made yesterday by Attorney General Ashcroft do nothing 
to Correct these sever deficiencies. He claimed that because the 
terrorists responsible for the September 11th attacks 
committed war crimes, they ``do not deserve the protection of the 
American Constitution.'' But the U.S. government has repeatedly argued 
that people accused of war crimes deserve full due process protection. 
That is certainly the case for U.S. soldiers who might be accused of 
war crimes by foreign courts, and it has even been true of alleged war 
criminals in Bosnia and Rwanda. The United States cannot credibly 
insist on due process when others are the victims if it refuses to 
accord the same due process when Americans are the victims.
    Umand Rights Watch believes the Executive Order is contrary to 
fundamental principles of human rights. While the rights in question 
may be derogated from in times of emergency, the U.S. must shoe that 
this is being done only to the extent strictly required by the 
exigencies of the situation. The far-reaching and ambiguous reach of 
the Executive Order strongly indicates that this is not the case. It is 
hard to imagine such a military commission escaping criticism by the 
U.S. government if created by another government. It is wrong and 
unlawful for the U.S. government to arrogate to itself the power to 
transgress these well established protections of international human 
rights law.
    We urge you to rescind the Executive Order. Should any derogation 
from the rights provided under the ICCPR prove necessary, it should be 
done in a manner consistent with the strict requirements of 
international law.
            Sincerely,
                                               Kenneth Roth
                                                 Executive Director

                                

Statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, 
   The Catholic University of America School of Law, Washington, D.C.

    Dear Senator Hatch and Members of the Committee on the Judiciary:
    I am pleased to respond to your request for my views regarding the 
issue of military tribunals and other measures that the Attorney 
General has undertaken to pursue the war against terrorism. As you 
know, it was my privilege to serve as head of the Office of Legal 
Counsel in the Reagan and first Bush administrations.
                             We are at War
    First, this is a war. The bloodshed that stains our National 
integrity in New York, Washington DC and Pennsylvania can be little 
else--actually and constitutionally. It is declared by some, most 
notably my friend and constitutional law colleague, Professor Laurence 
Tribe of Harvard, that Congress' joint resolution of force in response 
to the September 11 attacks upon our sovereignty and thousands of 
innocent Americans does not possess ``the ritualistic solemnity of a 
declaration of war.'' It is not clear what this means, however, even to 
Professor Tribe since he later admits in the same commentary that ``we 
are engaged in a real war, not a metaphorical one akin to the `wars' on 
drugs or poverty.'' In this latter sense, he is of course entirely 
correct there is nothing artificial about the grievous loss of innocent 
life already suffered, or threatened to be inflicted again, by 
terrorists who want nothing less than the destruction of America, 
herself.
              Military Tribunals are fully Constitutional
    To put an end to the constitutional speculation, it is necessary to 
remember that war has been declared only five times by the Congress 
(the War of 1812, the Mexican American War of 1848, the Spanish 
American War of 1898, and World War I and World War II), while the U.S. 
military has been engaged in hundreds of military campaigns, including, 
of course, Korea, Vietnam, and the Persian Gulf without such formal 
declarations. In passing joint resolutions supporting these larger 
number of military campaigns, including the present one, it is 
abundantly clear that the President is entitled to exercise the full 
authority of the Commander in Chief, including the authority to create 
military commissions for the purpose of trying unlawful belligerents. 
As long ago as 1801 in Talbot v. Seeman, Chief Justice Marshall held 
that: ``Congress may authorize general hostilities. . .or partial 
[war], in which case the laws of war, so far as they actually apply to 
our situation, must be noticed.''
            Congress has authorized the President's Actions
    Justice Jackson once observed as well that the President's foreign 
affairs authority is at its zenith when Congress and the President have 
acted together. Given the joint resolution of force, the congressional 
appropriations in support of the Afghanistan campaign, the provisions 
of Title 10 which authorize the President to convene military 
commissions outside the normal rules of procedure and evidence, it 
would be fatuous to suggest that the President lacks authority to 
undertake the military order issued.
    The American Civil Liberties Union nevertheless immediately decries 
this logical, and entirely constitutional, exercise of war power as 
``deeply disturbing'' and in contravention of ideas ``central to our 
democracy.'' In fact, as just observed, the President's order is well-
grounded upon constitutional text, statute and past practice, and is 
more likely to preserve civil liberty than to undermine it.
  Ordinary Criminal Courts Fail to Accomplish Our Military Objectives
    Terrorism is not garden-variety crime within an ordered society. It 
is the indiscriminate killing of civilian innocents and destruction of 
civilian property. As such, it is the quintessential crime against 
humanity, rather than a social or cultural dysfunction capable of 
rehabilitation or rectification by means of ordinary law enforcement 
and prosecution.
    Past experience with attempting to try terrorist acts within the 
regular criminal justice system has been unsatisfactory largely because 
standards of proof and rules of evidence entirely appropriate to 
peacetime are ill-suited to the effective punishment and deterrence of 
terrorist act. Presumed innocence, proof beyond a reasonable doubt and 
Miranda rights and privileges against self-incrimination all make sense 
when the delicate balance of citizen right is being balanced against 
societal interests in confining the use of force by authority. However, 
when a the Congress has authorized a President to respond to unprovoked 
attack with all necessary force to events like those of September 11 
and ``any future act'' of international terrorism, the state of war 
intends the balance to be different.
    The standard applied in military tribunals is simple and pragmatic. 
If those perpetuating war crimes are not disposed of upon the field of 
battle, military tribunals may be empowered to ascertain with evidence 
that is ``probative to a reasonable man''--that is, more probable than 
not. What the tribunals seek to ascertain is whether a given person or 
organization has committed what Sir Edward Coke called centuries ago, a 
crime against humanity. In other words, the type of crime only 
committed by the enemies of mankind.
    Practically, this will mean neither the hearsay rule (which has 
bedeviled prior terrorist trials in federal court because of the 
disappearance or unreachability of direct witnesses) nor ill-fitting 
exclusionary rules that have no deterrence-based relevance to this 
setting would derail the admission of evidence obtained under the 
noncoercive interrogation authorized by the President's order. The 
President has specifically provided as well that this humane treatment 
be afforded ``without any adverse distinction based on race, color, 
religion, gender, birth, wealth, or similar criteria.'' ACLU charges of 
``racial and ethnic profiling'' thus find no support within the scope 
of the President's own directive.
                 A Full and Fair Trial Will Be Provided
    As in past cases, the actual composition and procedures of these 
tribunals--which can sit either in the United States or elsewhere--are 
left to be determined by the Secretary of Defense and military 
commanders subordinate to the President, subject however to the 
provision of a ``full and fair trial,'' with conviction and sentencing 
upon the concurrence of two-thirds of the tribunal or commission 
present. So while the rules and regulations are yet to come, we can get 
some inkling of their content by examining those promulgated by 
military commanders, such as Dwight Eisenhower in the European theater 
of WWII and Douglas MacArthur in the Pacific. While there are subtle 
differences, both commanders specified greater evidentiary latitude, 
including allowing secondary evidence where witnesses are unavailable 
and copies of documents and confessions to be admitted without undue 
delay or the kind of elaborate foundations required in cases before 
judges and juries, rather than military personnel.
    Is all this just an elaborate denial of due process and sham 
proceeding? Hardly, the use of military tribunals was commonplace in 
World War II and those appearing before them were both exonerated and 
executed. The same is likely now. The ``fair trial'' mandated by the 
Bush order is also more likely to become reality simply because the 
discipline of legally-trained military personnel sitting in judgment 
has a better chance of being humanly evenhanded than finding somewhere 
in the universe a jury capable of being dispassionate about the use of 
human weapons of mass destruction against the Trade towers and 
Pentagon. Professor Tribe and I agree when he concedes that due process 
of law ``both linguistically and historically permits trying unlawful 
combatants for violations of the laws of war, without a jury or many of 
the other safeguards of the Bill of Rights, provided each accused may 
hear the case against him and receives a fair opportunity to contest it 
through competent counsel.''
    Most importantly, military tribunals have the virtue of allowing 
evidence to be considered without necessitating the disclosure of 
classified information in open court or the identification of 
intelligence personnel and sources. And here the point of military 
tribunals, and their appropriateness, becomes plain. These bodies, 
unlike regular Article III criminal justice system, are not primarily 
for purposes of punishment. They are extensions of the military 
campaign and the efforts of the President to ``protect the United 
States and its citizens, and for the effective conduct of military 
operations and prevention of terrorist attacks.''
    Perhaps, that is why the creation of these tribunals in war time 
for the trial of war crimes is so well fixed and unassailable in 
constitutional precedent. The Supreme Court does not sit in ultimate 
review of the tribunal's work beyond assuring itself that the 
commission was properly empaneled. It is also why the jurisdiction of 
these bodies depends upon Congress' war power and the individual who, 
with how ever much reluctance he must surely have, acts as our 
Commander in chief.
    Military tribunals are a necessary part of the war on terrorism, 
but they are not the only part. Attorney General Ashcroft has received 
from Congress enhanced law enforcement authority to combat terrorist 
organizations and those who harbor or finance them. Necessary questions 
were asked, and in my judgment, sufficiently answered as to whether 
these proposals curtail our civil liberties. They do not. Congress' 
prudent passage of the recent anti-terrorism legislation is well aimed 
at reconciling warrant and surveillance authority with global 
communications and detaining and removing those entering the United 
States for the purpose of causing civilian deaths through weapons of 
mass destruction. Unless construed well beyond their intended text and 
context, they should have no effect on the constitutionally protected 
speech and association of American citizens.
    But it is surely now unfair and incredulous to harangue Attorney 
General Ashcroft for advising the President that should the new anti-
terrorism legislation lead to the apprehension of bin Laden and his 
confederates that a civilian trial as if he were a common thief or 
murderer--times, of course, several thousand--would be appropriate.
    As sensible as it may be to expand warrant authority in the context 
of terrorist emergency to include wireless and Internet communication 
and to raise the penalties for the knowing possession of biological 
toxins not reasonably necessary for peaceful purposes, to assume that 
the terrorist organizations responsible for September 11 should be 
tried in federal court is to confuse war and the crimes of war. 
Terrorists are neither soldiers nor garden variety criminals, meriting 
federal indictment, they are war criminals.
    As the Afghan bombing has proceeded, the nature of the military 
operations needed to root out these architects of war crime is 
expensive and prolonged. Of course, it is also open to doubt whether 
any of the malefactors will be taken alive. But assuming some will, it 
is far healthier for the rule of law that the President has indicated 
their ultimate destination and method of punishment in advance. My 
former Justice Department colleague and U.S. Attorney General, William 
Barr, has been quoted as saying ``[t]here's a basic tension as to 
whether to treat this as a law enforcement issue or a national 
security/military issue.'' He, of course, is right--that is the heart 
of the issue.
    Mr. Barr suggests that we ``[f]ind these people and demolish 
them.'' That may happen on the field of battle, but if it does not and 
we apprehend them instead, their destination should be a military 
tribunal, not the U.S. District Court. By definition, terrorism is 
aimed at indiscriminately killing civilian innocents and destroying 
civilian property. Professor Tribe may think that definition imprecise, 
but I doubt that the citizens of New York who now live without mothers 
and fathers or sons and daughters share in his belief. Respectfully, 
whatever imprecision may exist under the order does not render it, to 
use Professor Tribe's words, ``riddled with flaws,'' but merely subject 
to the reasonable construction historically accorded President's in the 
tactical decision making that accompanies a war effort.
       Even Opponents Concede The Unsuitability of Regular Courts
    Professor Tribe has sagaciously observed, however, that even if 
regular criminal proceedings might be stretched to accommodate the 
trial of unlawful belligerents, ``it does not follow that they are 
best-suited for the task. . . .[S]uch nonmilitary trials grant an 
extended pulpit to an accused bent on claiming martyrdom and capable of 
stirring others to further acts of international terrorism.'' Professor 
Tribe's important observation reminds us, as President Bush's military 
order does, that the tribunals are only partially to punish, they are 
also to prevent ``the potential deaths, injuries, and property 
destruction that would result from potential acts of terrorism against 
the United States.'' Yes, our objective is to punish those who took our 
brothers and sisters--or in my case a faculty colleague killed in the 
Pentagon plane--but it is also to root out and deter the instigators of 
further harm. In battle, this is best accomplished by a partial or 
targeted declaration of war, not against Afghanistan, itself, but the 
terrorists resident there, or anywhere. Tactically, in the present war, 
the battle necessarily extends to the disposition of those who are 
apprehended and suspected of war crime.
    Are military tribunals then a violation of civil liberties? No, 
simply a recognition of well established precedent. Military 
belligerents violating the international laws of war are properly tried 
before a panel of military officers. Such military commissions received 
extensive use in the Civil War, and were affirmed by the Supreme Court 
in the famous World War II decision sentencing General Tomoyuki 
Yamashita to hang for the brutal atrocities he ordered against 
civilians in the Philippines. When Yamishita petitioned the Court for 
habeas corpus, the Court rebuffed him stating that the war power 
delegated by Congress includes administering a system of military 
justice for the trial and punishment of those combatants who have 
committed war crimes. No case contradicts this. The Civil War 
precedent, Ex parte Milligan that nominally questions the availability 
of military tribunals where civilian courts remain open, as Professor 
Tribe noted, was later confined to its unique domestic insurgency 
facts, and specifically the fact that Milligan was not--in 
international parlance--an ``unlawful belligerent.'' Terrorists clearly 
are.
Farfetched Hypotheticals Should Not Distract Us From the Serious Tasks 
                                At Hand
    Professor Tribe, and others, argue with various farfetched 
hypotheticals that the President's order might be misapplied. Aside 
from whether the President deserves in this time of emergency greater 
deference, it is simply not sound constitutional practice to invalidate 
executive action that has a completely constitutional range of 
application because it might be misapplied under a strained application 
of its text. Professor Tribe wants the Congress to step in, but it is 
not clear to what end. Indeed, given the text of the order and the 
President's full intention to apply it to the leadership of al Qaida or 
its terrorist equivalent, there is nothing to correct or rectify. 
Instead, opponents of the order proceed to mix issues by broadly 
complaining of Justice Department initiatives to interrogate those who 
have recently traveled to or from terrorist nations and fit other 
criteria or to monitor the conversations of those already convicted of 
terrorism and in jail or awaiting trial for espionage.
                 The Lawfulness of the Detention Policy
    It is appropriate in concluding, therefore, to briefly examine the 
Attorney General's actions. First, as to detentions, it is very clear 
that the Attorney General is holding individuals who are either 
violating immigration law or needed as a material witness. In the 
former case, existing immigration procedures will be employed to 
dispose of the cases. In the second, Title .18 and Supreme Court 
precedent affirm the right to detain material witnesses who have 
knowledge of facts closely connected to a crime and whose testimony 
would likely be relevant and highly probative in a criminal proceeding. 
In this instance, the Attorney General is doing little more than 
applying well established statutory law that allows detention where a 
judicial officer determines that it may become impractical to secure 
the presence of the person by subpoena. 18 U.S. C. 1844. As Justice 
Jackson stated long ago for the Court, ``the duty to disclose knowledge 
of crime. . .is so vital that one known to be innocent may be detained, 
in the absence of bail, as a material witness.'' Stein v. New York, 346 
U.S. 156, 184 (1953).
             The Lawfulness of the Request for Information
    A fortiori if a citizen can be detained to disclose knowledge of a 
crime as a duty of citizenship, noncitizens here on immigration visas 
can certainly be asked to voluntarily answer questions that may lead to 
the apprehension of terrorists. As the Attorney General has repeatedly 
emphasized these individual have not been singled out for reasons of 
animus. They are being sought for reasons of common sense police work 
related to recent (with the last two years) connection with terrorist 
locations and their arrival on student, tourist and business visas 
similar to those employed by the terrorists of September 11.
    As the FBI noted almost three years prior to September 11, ``we 
have a problem with Islamic terrorism. . . .If we had a problem with 
Latvian terrorism, we'd focus on Latvians.'' John Mintz and Michael 
Grunwald, FBI Terror Probe Focuses on U.S. Muslims,'' Wash. Post, 
October 31, 1998 at A1. There is nothing unconstitutional about 
focusing police work on the likeliest suspects. Indeed., it is arguable 
that the factual profile being employed by the Attorney General in any 
given case with a few additional facts--could support the reasonable 
suspicion standard allowing not just voluntary, but involuntary, 
detention and questioning. The Attorney General with considerable 
restraint has not pressed this position. Rather, he has taken a narrow 
view of his authority that coincides fully with precedent, such as the 
Supreme Court's recent denial of review in Brown v. Oneta (2001). 
Police questioning based upon race is not unconstitutional so long as 
it is based on a race-neutral policy of obtaining a description of the 
assailant and seeking out persons who match it. Even putting aside the 
substantial questions of whether the Fourth Amendment applies to 
noncitizens in the same fashion as it does to citizens--a proposition 
that is highly doubtful in light of the Supreme Court's plurality 
decision in United States v. Verdugo-Urquidez. (1990) (indicating that 
aliens do not necessarily qualify as ``the people'' under the Fourth 
Amendment)--the Attorney General is well authorized to undertake the 
investigation that he has.
  Prisoners Have No Privilege to Plot Future Terrorist Activity From 
                                 Prison
    Turning lastly to the monitoring of prisoner communications, the 
Attorney General has prudently limited this practice to 12 convicted 
terrorists and four people being held on espionage charges. In may come 
as a surprise to some, but a prisoner has no legal right to privacy. 
Prison officials regularly screen mail and monitor visits of those 
incarcerated. True, the law recognizes various privileges--such as 
attorney-client--but conversations are privileged only if they 
legitimately fall within the scope of the relationship. A conversation 
with one's attorney that facilitates new acts of terrorism is not 
privileged. The Justice Department policy is well-crafted to observe 
these constitutional strictures. First, the affected prisoners are 
notified in advance of the monitoring. Second, a ``taint team'' 
uninvolved in the prosecution of the affected prisoner will monitor and 
either discard privileged material related to trial preparation and the 
like or seek disclosure but only (barring emergency) with the approval 
of a federal judge. Again, even assuming that the Fifth and Sixth 
Amendments (privilege against self-incrimination and fair trial) apply 
to noncitizens in the same way as citizens, there is no constitutional 
violation unless the prosecution actually and intentionally obtains 
confidential information pertaining to trial preparation and defense 
strategy and that information is used to the defendant's substantial 
detriment. As the Supreme Court has long held intrusions into the 
attorney-client relationship are not per se unconstitutional. There 
must be a concrete showing of harm to the defendant and benefit to the 
State. Weathersford v. Bursey (1977). The Attorney General has 
established a procedure to monitor conversations not to harm criminal 
defendants, but to ensure the safety and security of innocent American 
citizens from future terrorist attack. That is not now, nor should it 
ever be, unconstitutional.
    I hope this opinion is useful to the work of the committee, and I 
thank you for the opportunity to present it to you for your 
deliberations.

                                

  Article by Harold Hongju Koh, The New York Times, November 23, 2001

                 We Have the Right Courts for Bin Laden
    New Haven--If we should capture 0sama bin Laden or his accomplices 
in the days ahead, where should we try them? Two unsound proposals have 
recently emerged. The first, and by far more dangerous, is already law: 
the president's misguided and much criticized order authorizing secret 
trials before an American military commission. The second, more benign 
approach, offered by prominent international lawyers, is to try 
terrorists before an as yet uncreated international tribunal.
    Both options are wrong because both rest on the same faulty 
assumption: that our own, federal courts cannot give full, fair and 
swift justice in such a case. If we want to show the world our 
commitment to the very rule of law that the terrorists sought to 
undermine, why not try mass murderers who kill American citizens on 
American soil in American courts?
    I hope never to see 0sama bin Laden alive in the dock. As Mohammed 
Atefs recent death shows, international law entitles us to redress the 
killing of thousands by direct armed attack upon Osama bin Laden and 
other Al Qaeda perpetrators responsible for the attacks of Sept. 11. 
But if they surrender, we should not lynch them, but rather try them, 
to promote values that must stand higher than vengeance: to hold them 
accountable for their crimes against humanity, to tell the world the 
true facts of those crimes and to demonstrate that civilized societies 
can provide justice for even the most heinous outlaws. Israel tried 
Adolf Eichmann. We can try 0sama bin Laden, and without revealing 
secret information, making him a martyr or violating our own 
principles. President Bush's order for secret military trials 
undermines these values.
    I have long supported international adjudication, but that option 
makes little sense here. 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 questioned 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.
    American courts have tried international criminals who have 
violated the law of nations including pirates and slave traders--since 
the beginning of the nation. We have convicted hijackers, terrorists 
and drug smugglers (including Panama's Manuel Noriega, who surrendered 
to American soldiers after extended military operations).
    Osama bin Laden and his top aides have already been indicted in 
federal court. We have successfully tried and convicted Al Qaeda 
members and associates for attempting to blow up the World Trade Center 
and planning the August 1998 bombings of the American embassies in 
Tanzania and Kenya. With venue changes, careful security and intensive 
investigative efforts, Timothy McVeigh was tried, convicted and 
sentenced for a comparable terrorist act. As for protecting classified 
information, existing law gives prosecutors ample authority to prevent 
such information from being compromised in trial.
    If any judicial system in the world can handle a case like this 
fairly, efficiently and openly, it is ours. If four or 400 Americans 
had died at the World Trade Center and the perpetrators had been 
caught, no one would suggest that we try the murderers anywhere but in 
American courts. No country with a well functioning judicial system 
should hide its justice behind military commissions or allow 
adjudication of the killing of nearly 4,000 residents by an external 
tribunal. Why not show the world that American courts can give 
universal justice?
    Harold Hongju Koh, a professor of international law at Yale, was 
assistant secretary of state for human rights in the Clinton 
administration.

                                
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    Article by Anthony Lewis, The New York Times, November 30, 2001

                            Wake Up, America
    Boston--It is the broadest move in American history to sweep aside 
constitutional protections. Yet President Bush's order creating 
military tribunals to try those suspected of links to terrorism has 
aroused little public uproar. Why? Because, I am convinced, people do 
not understand the order's dangerous breadthand its defenders have done 
their best to conceal its true character.
    The order is described as if it is aimed only at 0sama bin Laden 
and other terrorist leaders. A former deputy attorney general, George 
J. Terwilliger III, said the masterminds of the Sept. 11 attacks 
``don't deserve constitutional protection.''
    But the Bush order covers all noncitizens, and there are about 20 
million of them in the United States immigrants working toward 
citizenship, visitors and the like. Not one or 100 or 1,000 but 20 
million.
    And the order is not directed only at those who mastermind or 
participate in acts of terrorism. In the vaguest terms, it covers such 
things as ``harboring'' anyone who has ever aided acts of terrorism 
that might have had ``adverse effects'' on the U.S. economy or foreign 
policy. Many onetime terrorists Menachem Begin, Nelson Mandela, Gerry 
Adams--regarded at the time as adverse to U.S. interests, have been. 
``harbored'' by Americans.
    Apologists have also argued that the Bush military tribunals will 
give defendants enough rights. A State Department spokeswoman, Jo-Anne 
Prokopowicz, said that they would have rights ``similar to those'' 
found in the Hague war crimes tribunal for the former Yugoslavia.
    To the contrary, Hague defendants like Slobodan Milosevic are 
entitled to public trials before independent judges, and to lawyers of 
their choice. The Bush military trials are to be in secret, before 
officers who are subordinate to officials bringing the charges; 
defendants will not be able to pick their own lawyers. And, unlike the 
Hague defendants, they may be executed.
    The Sixth Amendment provides: ``In all criminal prosecutions, the 
accused shall enjoy the right to a speedy and public trial, by an 
impartial jury. . ..'' That covers citizens and noncitizens in this 
country alike.
    On a few occasions, acts of war have been treated as outside Sixth 
Amendment protection. Roosevelt set up a military tribunal to try Nazi 
saboteurs landed on our shores in World War II. But that example--a 
tribunal for a particular occasion, limited in time and scope--shows 
the very danger of the Bush order. It is unlimited, in a fight against 
terrorism that could go on for years.
    ``It's worth remembering that the order applies only to 
noncitizens,'' a Wall Street Journal editorial said. I hope The 
Journal's editors, who are usually supportive of immigrants and their 
role in building this country, will consider the pall of fear this 
order may put on millions of noncitizens.
    And the Bush order could easily be extended to citizens, under the 
administration's legal theory. Since the Sixth Amendment makes no 
distinction between citizens and aliens, the claim of war exigency 
could sweep its protections aside for anyone in this country who might 
fit the vague definitions of aiding terrorism.
    But George W. Bush would never let his order be abused, one of its 
defenders said the other day. It was a profoundly un-American comment. 
From the beginning, Americans have refused to rely on the graciousness 
of our leaders. We rely on legal rules. That is what John Adams meant 
when he said we have ``a government of laws, and not of men.''
    The Framers of our Constitution thought its great protection 
against tyranny was the separation of the federal government's powers 
into three departments: executive, legislative, judicial. Each, they 
reasoned, would check abuse by the others.
    There is the greatest danger of the Bush order. It was an act of 
executive fiat, imposed without even consulting Congress. And it seeks 
to exclude the courts entirely from a process that may fundamentally 
affect life and liberty. The order says that a defendant ``shall not be 
privileged to seek any remedy. . .in any court,'' domestic or foreign.
    I do not doubt that leaders of Al Qaeda could properly be tried by 
a military tribunal. But the Bush order cries out for redrafting in 
narrower, more careful terms. Under the Constitution, that is the duty 
of Congress. Its leaders have so far been afraid to challenge anything 
labeled antiterrorist, however dangerous. It is time they showed some 
courage, on behalf of our constitutional system.

                                

     Article by Anthony Lewis, The New York Times, December 4, 2001

                            Dust in Our Eyes
    Boston--President Bush's order establishing military tribunals has 
a particular distinction apart from its impact on American traditions 
of justice. For a presidential directive of such profound importance, 
it is extraordinarily ill drafted.
    So we must conclude from statements made by supporters of the Bush 
proposal. For they have defended it by running away from the language 
of the order, spinning the text to make it seem more reasonable.
    A striking example was a piece by the president's counsel, Alberto 
R. Gonzales, on the OpEd page of The New York Times last week. The 
article read as if Mr. Gonzales were defending an order that he wished 
he and his colleagues had written instead of the one that Mr. Bush 
actually issued.
    ``The order preserves judicial review in civilian courts,'' Mr. 
Gonzales wrote. ``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 
proceeding in a federal court.''
    In fact, the order said:
    ``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.''
    Far from ``preserving'' judicial review, as Mr. Gonzales said, the 
order sought to prevent it. A court might nevertheless entertain a 
habeas corpus petition, but review on habeas corpus is usually more 
limited than on a regular appeal.
    Military commissions, Mr. Gonzales said, ``can dispense justice 
swiftly, close to where our forces may be fighting.'' That sounds as 
though the order covers only enemies captured in Afghanistan, or 
potentially on other foreign battlefields. Others have argued for the 
order from the same premise. But it is false.
    The order covers all immigrants, visitors and other non-citizens in 
the United States, about 20 million of them. Asians, Hispanics, 
Russians, Israelis and others who came here to struggle for a better 
life will now know that they are at risk of being detained and tried by 
a military tribunal if someone thinks they have something to do with 
terrorism. It is a two-tier system of justice: a violation of America's 
historic promise of equal justice.
    ``The president will refer to military commissions only non-
citizens who are members or active supporters of al Qaeda or other 
international terrorist organizations targeting the United States,'' 
Mr. Gonzales said. But the order applies much more broadly and vaguely, 
for example to anyone who has ``harbored'' someone who has ever 
prepared terrorist acts.
    ``The American military justice system is the finest in the 
world,'' Mr. Gonzales said, suggesting that the Bush military 
commissions will be the same as courts-martial under the Uniform Code 
of Military Justice. But they will be very different.
    For example, the jury in a regular military court must be unanimous 
to impose a death sentence. Mr. Bush's tribunals require only a two-
thirds vote of commission members ``present at the time of the vote,'' 
and only a majority of members need be present. A five-member 
commission can operate with three present, and two could impose the 
death penalty: less than half the full commission.
    Court-martial judgments are appealable on all issues of fact and 
law. The courts use strict rules of evidence comparable to those in 
civilian courts, as against the relaxed standard allowed by Mr. Bush. 
Court-martial defendants have the right to choose their own lawyer; the 
Bush order gives no such assurance.
    Attorney General John Ashcroft said last week that the 
administration's measures had been ``carefully crafted to not only 
protect America but to respect the Constitution and the rights 
enshrined therein.'' Critics, he said, ``have sought to condemn us with 
faulty facts or without facts at all.''
    To the contrary, Mr. Ashcroft and his colleagues have sought to 
conceal the menacing facts of the Bush order. They remind me of my old 
boss James Reston's quip, ``Don't confuse us with the facts.''
    But these are not just word games. The issues are as serious as any 
that have faced our constitutional system in a long time. The Bush 
military tribunal order, The Economist of London says this week, ``is 
deeply disturbing . . . . When so much is going so well for the United 
States, and deservedly so, it would be foolish to hand Mr. bin Laden 
such an unnecessary gift.''

                                

        Article by Jim McGee, Washington Post, November 28, 2001

            Ex-FBI Officials Criticize Tactics On Terrorism
             detention of suspects not effective, they say
    Until Sept. 11, the FBI employed a distinctive strategy for 
fighting terrorists: By using informants and wiretaps, the bureau 
monitored suspected cells--sometimes for years--before making any 
arrests. The theory was that only such long-term investigations reveal 
useful information about potential plots.
    Since the terrorist attacks on New York and Washington, that 
strategy has undergone a wholesale revision. Under the new approach, 
the FBI will focus chiefly on preventing terrorist acts by rounding up 
suspects early on, before they get a chance to act.
    The aggressive FBI dragnet--championed by Attorney General John D. 
Ashcroft--has provoked much commentary and criticism for its impact on 
civil liberties. Now, in a series of on-the-record interviews, eight 
former high-ranking FBI officials have offered the first substantive 
critique of the Ashcroft program, questioning whether the new approach 
will have the desired effect.
    The executives, including a former FBI director, said the Ashcroft 
plan will inevitably force the bureau to close terrorism investigations 
prematurely, before agents can identify all members of a terrorist 
cell. They said the Justice Department is resurrecting tactics the 
government rejected in the late 1970s because they did not prevent 
terrorism and led to abuses of civil liberties.
    ``It is amazing to me that Ashcroft is essentially trying to 
dismantle the bureau,'' said Oliver ``Buck'' Revell, a former FBI 
executive assistant director who was the primary architect of the FBI 
antiterrorism strategy during the 1980s. ``They don't know their 
history,'' he said, ``and they are not listening to people who do.''
    Former FBI director William H. Webster said Ashcroft's policy of 
preemptive arrests and detentions ``carries a lot of risk with it. You 
may interrupt something, but you may not be able to bring it down. You 
may not be able to stop what is going on.''
    In the past, Webster said, when the FBI identified a person or 
group suspected of terrorism, agents neutralized the immediate threat 
of violence. Then they began a long-term investigation using 
informants, surveillance or undercover operations, ``so when you roll 
up the cell, you know you've got the whole group.''
    Ashcroft declined to be interviewed for this article, as did FBI 
Director Robert S. Mueller III. Justice Department spokeswoman Mindy 
Tucker defended the change in tactics as part of a wartime mobilization 
at the department prompted by the Sept. 11 attacks.
    ``The world is different and the priorities are different,'' Tucker 
said. ``I understand this is not the traditional way the FBI handled 
things. But that's the priority.''
    A senior Justice Department official who spoke on the condition of 
anonymity said that none of the changes ordered by Ashcroft would have 
enabled the FBI to prevent the Sept. 11 attacks. After two months of 
intensive investigation, the FBI has concluded that the 19 suspected 
hijackers acted alone in the United States as a self-contained 
terrorist cell whose mission was planned and funded overseas.
    ``There was not a lot of the plot we could have jumped on here,'' 
the official said.
    Webster and others say Ashcroft's conviction that FBI 
counterterrorism operations require radical surgery ignores a record 
that, though not widely known outside the bureau, includes 131 
prevented terrorist attacks from 1981 to 2000.
    ``We used good investigative techniques and lawful techniques,'' 
said Webster, who left the FBI in 1987 to take over the helm at the 
CIA. ``We did it without all the suggestions that we are going to jump 
all over the people's private lives, if that is what the current 
attorney general wants to do. I don't think we need to go that 
direction.''
    Many of the prevented attacks were potentially catastrophic, with 
targets that included a 747 airliner, a gas pipeline, a crowded movie 
theater and a visiting world leader, Indian Prime Minister Rajiv 
Gandhi.
    ``Interdiction [of planned terrorist attacks] became an 
investigative-planning tool, and we were rather successful at it,'' 
said former FBI assistant director Kenneth P. Walton, who established 
the first Joint Terrorism Task Force in New York City.
    The sharp increase in FBI intelligence wiretaps and terrorism 
investigations after the 1995 Oklahoma City bombing led to the 
prevention of 15 attacks in 1997 and 10 in 1998, FBI documents show.
    ``We lived to prevent a terrorist act,'' Robert Blitzer, former 
chief of the FBI's counterterrorism section, said. ``That was our whole 
program. We prevented many acts of terrorism.''
    But not the ones on Sept. 11, which came at a time when the FBI was 
reeling from high-profile embarrassments, from misplaced FBI laptops 
and guns to a much-criticized investigation of Wen Ho Lee to the 
treason of former FBI agent Robert P. Hanssen.
    FBI management reforms were under consideration even before 
Ashcroft announced his new strategy in a series of carefully 
orchestrated public statements over the past two months. The key 
elements include:

         Arresting and jailing ``suspected terrorists'' on 
        minor criminal or immigration charges. ``It is difficult for a 
        person in jail or under detention to murder innocent people or 
        to aid or abet in terrorism,'' Ashcroft said on Nov. 13.
         Cutting short long-term criminal terrorism 
        investigations when agents detect the possibility of new 
        violence. ``Even though this may hinder a criminal 
        investigation, prevention of terrorist attacks, even at the 
        expense of a prosecution, must be our priority,'' Ashcroft said 
        on Oct. 29.
         Deploying hundreds of state and local police officers 
        to conduct voluntary interviews of 5,000 Middle Eastern men who 
        are legal residents in the United States, based on their age 
        and the country issuing their passport.
         Shifting control of the FBI Joint Terrorism Task 
        Forces across the country from the FBI to presidentially 
        appointed local U.S. attorneys.

    Although none of the former officials interviewed for this article 
questioned the value of fine-tuning FBI operations in light of Sept. 
11, they contended that Ashcrofts new policies will weaken the FBI's 
primary strategy for penetrating terrorist cells.
    ``It's the Perry Mason School of Law Enforcement, where you get 
them in there and they confess,''
    Walton said of the plan to interview 5,000 Middle Eastern men. 
``Well, it just doesn't work that way. It is ridiculous. You say, 'Tell 
me everything you know,' and they give you the recipe to Mom's chicken 
soup.''
    While Revell and others said the 5,000 interviews may have a short-
term deterrent effect, they said the tactic is problematic. ``One, it 
is not effective,'' Revell said. ``And two, it really guts the values 
of our society, which you cannot allow the terrorists to do.''
    Through years of trial and error, the FBI has found that 
intelligence-gathering rarely deterred terrorist acts unless it was 
combined with long-term criminal investigations that employed 
informants, undercover agents and electronic surveillance.
    In virtually every case in which the FBI prevented a terrorist 
attack, these sources said, success depended on long-term 
investigations, whose hallmarks were patience and letting terrorist 
plots go forward.
    ``You obviously want to play things out so you can fully identify 
the breadth and scope of the conspiracy,'' said James Kallstrom, former 
chief of the FBI office in New York, who oversaw two large 
investigations of the Qaeda terrorist network. ``Obviously, the most 
efficient and effective way to do that is to bring it down to the last 
stage.''
    Former FBI assistant director John Otto described a case in which a 
long-running FBI investigation in Chicago of a Serbian nationalist 
terrorist cell prevented the deaths of nearly 300 Serbian American 
children attending a Christmas party at a church. An informant tipped 
off an agent to the plot.
    ``Long-term successful investigations are our forte,'' Otto said. 
``I don't think there is ever a need to get away from them. Look at the 
track record over time.''
    Although there are inherent risks, the ex-officials said there is 
no known case in which an FBI decision to let a bombing plot unfold 
resulted in injury or death.
    Former FBI deputy director Floyd I. Clarke said he sympathized with 
Ashcroft's desire to take aggressive preventive measures, but said most 
preventions arise from methodical investigations. He cited one case in 
which FBI agents found out where a terrorist cell stored its 
explosives.
    ``We did not want to just go and arrest them and grab the 
explosives,'' he said, ``because we knew they were connected with other 
groups.''
    Instead, FBI agents entered the building surreptitiously, rendered 
the explosives inert and sat back and waited. ``Eventually, we ended up 
taking down a whole cell of people,'' Clarke said. ``You try to make 
sure you have got as complete a picture as you can.''
    After the World Trade Center bombing in February 1993, the FBI 
quickly arrested several Middle Eastern men with ties to the radical 
Islamic religious leader Sheik Omar Abdul Rahman, who was based in New 
Jersey. The bureau came under pressure to arrest or detain Abdul Rahman 
and others around him on immigration charges. But the FBI resisted.
    ``We wanted to take the whole cell down and get him off the street 
for the rest of his life,'' said Blitzer, the former counterterrorism 
chief, ``not just allow him to be deported some place where he could 
continue on as the kind of terrorist leader he had been.''
    The FBI inserted a confidential informant into Abdul Rahman's inner 
circle and began intensive electronic surveillance. Within two months, 
the informant reported a second plot.
    In June 1993, agents raided a warehouse in Queens, N.Y., where they 
surprised five Islamic fundamentalists. The men were bent over large 
mixing barrels and stirring a porridge of bombmaking chemicals, which 
they planned to use to blow up the Holland and Lincoln tunnels and 
other New York landmarks.
    ``We had to let the information develop,'' said former FBI 
assistant director William Gavin, who oversaw the investigation. 
``Taking them off the street at an early stage of the investigation, I 
don't believe would have afforded us the opportunity to discover and 
resolve the intent to blow up the tunnels.''

                                

Statement of Hon. Zell Miller, a U.S. Senator from the State of Georgia

            Miller to Ashcroft's Critics: `Get Off His Back'
    Washington--U.S. Senator Zell Miller (D-GA) today issued the 
following statement in advance of Thursday's (12-6) Senate Judiciary 
Committee meeting, at which Attorney General John Ashcroft is expected 
to be grilled--about the Administration's proposal to bring terrorists 
to justice using military tribunals:
    ``They need to get off his back and let Attorney General Ashcroft 
do his job.
    ``Military tribunals have been used throughout history. The Supreme 
Court has twice upheld them as constitutional.
    ``Now, we're at war, and we're talking about using military 
tribunals only for non-citizens.
    ``Why in the world would we try our own soldiers with this system 
of justice but not some foreigner who is trying to kill us? It's crazy.
    ``These nit-pickers need to find another nit to pick. They need to 
stop protecting the rights of terrorists.
    ``This is about national security. This is about life and death.''

                                

                    National District Attorneys Association
                                 Alexandria, Virginia 22314
                                                   December 5, 2001

Honorable Patrick J. Leahy
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510-6275

Honorable Orrin G. Hatch
Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, DC 20510-6275

    Dear Chairman Leahy and Senator Hatch:

    As the President of the National District Attorneys Association I 
strongly support the President, and Attorney General Ashcroft, as they 
seek out those who have subjected our nation to unheralded attack. As 
we face a future of uncertain dangers we must rise to the challenge of 
doing the utmost to preserve the safety and well being of our citizens 
while bringing international criminals to justice.
    In these unprecedented circumstances we must take extra ordinary 
measures, consistent with our legal traditions and principles of law, 
to bring stability to a chaotic and threatening period in our history.
    The terrorist's heinous acts pose a clear threat to national 
security. We must all recognize, therefore, that the disruption of 
communications between international criminal elements is vital to 
prevent further attacks and loss of life. If, to do this, temporary 
restraints must be effectuated to further the criminal investigation 
and interrupt the flow of intelligence then we must be willing to 
accept this as necessary to protect our freedom.
    Even before this War Against Terrorism, America's prosecutors have 
been stymied by international requirements that limit the prosecution 
of criminals that have successfully fled to other countries. After the 
attacks of September we must not allow those responsible for thousands 
of deaths to escape punishment because our system of laws cannot adapt 
to the new reality of international terrorism.
    The President's plan to use military tribunals protects our 
national security interests while still ensuring the American tradition 
of the Rule of Law. The due process requirements that have been placed 
on the use of military tribunals, and their limited jurisdiction over 
non-US citizens, ensures that justice can be achieved.
    To Be the Voice of America's Prosecutors and to Support Their 
Efforts to Protect the Rights and Safety of the People
    While Congress is proper in it's continual scrutiny of our federal 
system of criminal justice I would urge that it support our President 
in this time of crisis.
            Sincerely,
                                            Kevin P. Meenan
               District Attorney, 7th Judicial District, Casper, WY
                 President, National District Attorneys Association

                                

          Article in Newsday (New York, NY) November 25, 2001

 What Price Security?; In Search for Safety, U.S. Sacrifices Too Many 
    Rights 1,147 people have been snared in Ashcroft's terror probe
    FOR A DEMOCRATIC nation at war, deciding how much freedom to 
relinquish in search of security is an unavoidable dilemma. Some 
choices are easy. Pat-downs before boarding airplanes? Absolutely. Men 
in military fatigues randomly searching vehicles at bridges and tunnels 
into the city? Certainly. Metal detectors at the entrances to sports 
arenas? Sure. Such intrusions are little more than inconveniences and 
their contribution to public safety is obvious. The choices get tougher 
when the intrusions are more clandestine, the security justification is 
less direct and the cost is measured in loss of privacy or liberty 
rather than mere inconvenience. Congress made those kinds of choices 
when it enacted an anti-terrorism law six weeks after the Sept. 11 
attacks on the Pentagon and the World Trade Center. Washington nudged 
the balance toward security by authorizing roving wiretaps, broader 
surveillance of the Internet, longer detention of non-citizens without 
charges and wider sharing within government of information collected by 
law enforcement. Those tough but necessary steps were hammered out 
through weeks of principled bipartisan negotiation.
    But before the ink was dry on that sweeping expansion of law 
enforcement power, the administration unilaterally pushed the envelope 
further with orders for military tribunals, detentions and dragnets, 
and eavesdropping on conversations between attorneys and their clients. 
The motive, of course, is to prevent additional terrorist attacks. The 
burden for Congress, the courts and the nation is to determine where 
the line should be drawn between what's legal and acceptable and what 
isn't in these unprecedented times. That's the only way to know when 
officials go a step too far, as they may have with detentions, as they 
certainly have when eavesdropping on attorneys and their clients and as 
they will if President George W. Bush opts for military tribunals for 
people arrested on American soil.
                             secret justice
    Osama bin Laden and his henchmen have a price on their heads and a 
shrinking corner of Afghanistan in which to hide. The prospect that 
some will be taken alive is real. If caught, they - as well as anyone 
in the United States believed to be a member of the al-Qaida network - 
could face trial by military tribunal with few of the legal protections 
customary in U.S. courts.
    Secret military trials and summary executions are not the face of 
justice that America should show to the world. While they may be 
appropriate for combatants captured in the field in Afghanistan, such 
trials would be an abomination when suspects are arrested in the United 
States.
    Unfortunately, all it will take to strip stateside suspects of 
customary legal protections is an assertion by Bush that someone who is 
not a U.S. citizen is in cahoots with al-Qaida, or has engaged in 
international terrorism, conspired to do so or harbored others who 
have. No evidence supporting the assertion is required.
    The tribunals could conduct trials in secret. A panel of senior 
military officials, not a jury, would sit in judgment. They wouldn't 
need a unanimous verdict to convict or to impose a death sentence. 
Evidence inadmissible in any U.S. civilian court would be allowed. The 
standard of proof could be something less than guilt beyond a 
reasonable doubt. And there would be no judicial appeal. Only Bush or 
his defense secretary could review the tribunals' decisions.
    The nation has a long, if undistinguished, history of wartime 
military tribunals. They were used during the Civil War to try 
Confederate saboteurs. And during World War II, the Supreme Court 
upheld a military tribunal's convictions and death sentences for a 
handful of German agents who came ashore in New York and Florida intent 
on sabotage.
    Those situations do not directly parallel today's undeclared war 
against a shadowy enemy that represents no nation. During the civil 
war, Southern states were in open rebellion against the government. In 
the 1940s, the United States had officially declared war and the men 
executed were soldiers of an enemy nation.
                             two standards
    Senate Judiciary Committee Chairman Patrick Leahy, (D-Vt.) is right 
to worry that Bush's order creating the tribunals ``sends a message to 
the world that it is acceptable to hold secret trials and summary 
executions, without the possibility of judicial review, at least when 
the defendant is a foreign national.'' Embracing two standards of 
justice, one for Americans and another for everyone else, ``could put 
U.S. citizens abroad, including military personnel and peacekeepers, at 
grave risk.''
    Bush countered that because of national security concerns ``the 
option to use a military tribunal in the time of war makes a lot of 
sense. It is in the interests of the safety of potential jurors that we 
have a military tribunal.''
    Security during terror trials in U.S. courthouses is an obvious 
concern. But such trials have been safely and successfully conducted 
before in cases arising from the 1993 bombing of the World Trade Center 
[trial pictured, below] and the 1998 bombings of American embassies in 
Africa. Before exercising the extraordinary option of military 
tribunals, Bush should make the case that the federal courts and 
security apparatus are not up to the job.
                        detentions and dragnets
    As the job of federal law enforcement has inexorably shifted from 
investigating crimes to preventing terrorism, the threat to civil 
liberties has grown.
    The government is holding hundreds of people captive without 
revealing who many are, the charges against them or the need for such 
secrecy. At last count, 1,147 people had been snared in Attorney 
General John Ashcroft's terror investigation--185 for immigration 
violations. Others have been charged with crimes unrelated to 
terrorism. A small number are being held indefinitely as material 
witnesses. While some people have been released, most are still in 
custody.
    Justice Department officials say they have provided ``as much 
information as possible'' about the detainees ``within the bounds of 
privacy regulations, grand jury regulations and judges' specific 
orders.'' Congress wants more detail so it can see if the detentions 
are necessary to protect the nation. After failing for weeks to respond 
to letters from an increasingly exasperated Leahy and others in 
Congress, Ashcroft has agreed to appear before the Senate Judiciary 
Committee. He must be prepared to provide real answers.
    While he's at it, Ashcroft should also respond to questions about 
his request that local police track down and interview 5,000 people who 
entered the country on student or tourist visas, most from Mideast 
countries. Officials say they are not criminal suspects but may have 
information about terrorists. Voluntary interviews are fair game. But 
the request has occasioned concern about racial profiling and possible 
violations of local laws prohibiting police from gathering intelligence 
for political purposes. Police in Portland, Ore., last week became the 
first to say no to Ashcroft's request.
                       lawyers, clients and feds
    Ashcroft should also be grilled about his unilateral decision to 
allow government monitoring of conversations and letters between 
attorneys and their terrorist-suspect clients in custody. The policy is 
unjustifiable.
    Ashcroft is worried that lawyers will ferry information between 
terrorists behind bars and conspirators on the outside. So far, based 
on his assertion of ``reasonable suspicion,'' Ashcroft has authorized 
eavesdropping on 13 suspects and their attorneys. That's a troubling 
expansion of police power and a serious erosion of the right to 
counsel. The inability to speak candidly with a lawyer compromises the 
right to effective counsel, which is a basic component of the right to 
due process. Officials should instead seek court orders for wiretaps 
and surveillance of lawyers they suspect of being conspirators and 
track their conversations with others after they leave their clients.
    American citizens don't have to worry right now that they will be 
subject to these troubling White House initiatives. And if ever there 
was an unsympathetic law enforcement target, the foreign-born terrorist 
is it.
    But American-style civil liberties allow individuals the 
presumption of innocence and shield them from the crushing weight of 
government power until they are proved guilty. Those legal protections 
have been honed through centuries of experience to accomplish their 
objectives without crippling law enforcement. They protect the 
innocent, as well as assuring that guilt is judged fairly. They should 
not be circumvented lightly.

                                

  Editorial in the New York Times, November 10, 2001, Saturday, Late 
                             Edition--Final

                        Disappearing in America
    Thousands of detainees being held in secret by the government; 
wiretaps on prisoners' conversations with their lawyers; public debate 
about the advisability of using torture to make suspects talk. Two 
months into the war against terrorism, the nation is sliding toward the 
trap that we entered this conflict vowing to avoid. Civil liberties are 
eroding, and there is no evidence that the reason is anything more 
profound than fear and frustration.
    We trust the Bush administration is not seriously considering 
torture--an idea that seems more interesting to radio talk shows and 
columnists than to government officials. But Attorney General John 
Ashcroft has been careless with the Constitution when it comes to the 
treatment of people arrested in the wake of Sept. 11, raising fears he 
will be similarly careless when it comes to using the broad new 
investigative powers recently granted him by Congress. A new rule just 
imposed by Mr. Ashcroft allows the government to listen in on 
conversations and intercept mail between some prison inmates and their 
lawyers--in effect suspending the Sixth Amendment right to effective 
counsel. He has also refused to provide basic information about the 
11,000plus people who have been arrested and detained in the course of 
the government's terrorism investigation. Even the White House seems 
uninformed. Questioned about the mass detentions early last week, the 
president's spokesman, Ari Fleischer, responded that ``the lion's 
share'' had been released after questioning. He was forced to backtrack 
and concede that he did not know any exact numbers when the Justice 
Department gingerly noted that a majority of all detainees remained in 
custody.
    To justify these extreme measures, the administration has been 
floating theories about what detainees might have done or known, which 
turn out upon further investigation to be unfounded. The Justice 
Department has backed away from Mr. Ashcroft's recent suggestion that 
three Arab men in custody in Michigan had advance knowledge of the 
Sept. 11 hijackings. Although the men were suspected of having links to 
Al Qaeda at the time of their arrest, law enforcement officials have 
said that no hard evidence to that effect has since emerged.
    The limited need for secrecy while investigating domestic terrorism 
hardly justifies blanket stonewalling. Mr. Ashcroft says that his 
strategy of ``aggressive detention of lawbreakers and material 
witnesses'' has been vital in preventing new horrors. That assertion 
has to be taken on blind faith, and it would be easier to accept if the 
attorney general had shown more overall restraint. But his definition 
of the Bill of Rights includes eavesdropping on lawyerclient 
conversations and withholding from the public such key facts as the 
identities of those still in custody, the reason for their continued 
detention--including any charges filed--and the facilities where they 
are being held. The secrecy even extends to refusing to explain the 
resort to secrecy. Meanwhile, reports suggest that some detainees 
cleared of any connection with terrorism have been held under harsh 
conditions for prolonged periods, and denied a chance to notify 
relatives of their whereabouts.
    It is time the White House stepped in. Just as President Bush 
advises Americans to learn to lead their normal lives while being ever 
watchful for terrorism, the Justice Department can investigate domestic 
attacks while respecting the basic rights that we are in this war to 
preserve. http://www.nytimes.com

                                

           Editorial in the New York Times, November 16, 2001

                         A Travesty of Justice
    President Bush's plan to use secret military tribunals to try 
terrorists is a dangerous idea, made even worse by the fact that it is 
so superficially attractive. In his effort to defend America from 
terrorists, Mr. Bush is eroding the very values and principles he seeks 
to protect, including the rule of law.
    The administration's action is the latest in a troubling series of 
attempts since Sept. 11 to do an end run around the Constitution. It 
comes on the heels of an announcement that the Justice Department 
intends to wiretap conversations between some prisoners and their 
lawyers. The administration also continues to hold hundreds of 
detainees without revealing their identities, the charges being brought 
against them or even the reasons for such secrecy.
    The temptation to employ extrajudicial proceedings to deal with 
Osama bin Laden and his henchmen is understandable. The horrific 
attacks of Sept. 11 give credence to the notion that these foreign 
terrorists are uniquely malevolent outlaws, undeserving of American 
constitutional protections. Military tribunals can act swiftly, 
anywhere, averting the security problems that a high-profile trial in 
New York or Washington could pose.
    But by ruling that terrorists fall outside the norms of civilian 
and military justice, Mr. Bush has taken it upon himself to establish a 
prosecutorial channel that answers only to him. The decision is an 
insult to the exquisite balancing of executive, legislative and 
judicial powers that the framers incorporated into the Constitution. 
With the flick of a pen, in this case, Mr. Bush has essentially 
discarded the rulebook of American justice painstakingly assembled over 
the course of more than two centuries. In the place of fair trials and 
due process he has substituted a crude and unaccountable system that 
any dictator would admire.
    The tribunals Mr. Bush envisions are a breathtaking departure from 
due process. He alone will decide who should come before these courts. 
The military prosecutors and judges who determine the fate of 
defendants will all report to him as commander in chief. Cases can be 
heard in secret. Hearsay, and evidence that civilian courts may deem 
illegally obtained, may be permissible. A majority of only two-thirds 
of the presiding officers would be required to convict, or to impose a 
death sentence. There would be no right of appeal to any other court.
    American civilian courts have proved themselves perfectly capable 
of handling terrorist cases without overriding defendants' basic 
rights. Federal prosecutors in New York recently won guilty verdicts 
against bin Laden compatriots who were accused of bombing two American 
embassies in Africa in 1998. Osama bin Laden himself was indicted in 
those attacks. Federal courts have ample discretion to keep sensitive 
intelligence under seal, while still affording defendants a legitimate 
adversarial process. The law already limits the reach of the Bill of 
Rights overseas. American troops need not show a warrant before 
entering a cave in Afghanistan for their findings to be admissible at 
trial in the United States.
    Using secretive military tribunals would ultimately undermine 
American interests in the Islamic world by casting doubt on the 
credibility of a verdict against Osama bin Laden and his aides. No 
amount of spinning by Mr. Bush's public relations team could overcome 
the impression that the verdict had been dictated before the trial 
began. Reliance on tribunals would also signal a lack of confidence in 
the case against the terrorists and in the nation's democratic 
institutions.
    A better way to administer justice must be found. If Mr. Bush is 
determined to bring terrorists to trial abroad, he should ask the 
United Nations Security Council to establish an international tribunal 
like the one set up to deal with war crimes in the Balkans. The 
proceedings of this court have been fair and effective, and it is 
respected around the world. If Slobodan Milosevic can be brought to 
trial before such a court, so can Osama bin Laden.
    More than half a century ago the United States and its allies 
brought some of history's most monstrous criminals to justice in 
Nuremberg, Germany. In his opening statement at the trial of Nazi 
leaders, Robert Jackson, the chief American prosecutor, warned of the 
danger of tainted justice. ``To pass those defendants a poisoned 
chalice is to put it to our lips as well,'' he said. President Bush 
would be wise to heed those words.

                                

           Editorial in the New York Times, December 2, 2001

               Justice Deformed: War and the Constitution
    The inconvenient thing about the American system of justice is that 
we are usually challenged to protect it at the most inopportune 
moments. Right now the country wants very much to be supportive of the 
war on terrorism, and is finding it hard to summon up much outrage over 
military tribunals, secret detentions or the possible mistreatment of 
immigrants from the Mideast. There is a strong temptation not to 
notice. That makes it even more important to speak up.
    After the brutal attacks of Sept. 11, the Bush administration began 
building a parallel criminal justice system, decree by decree, largely 
removed from the ordinary oversight of Congress and the courts. In this 
shadow system, people can be rounded up by the government and held at 
undisclosed locations for indefinite periods of time. It is a system 
that allows the government to conduct warrantless wiretaps of 
conversations between prisoners and their lawyers, a system in which 
defendants can be tried and condemned to death by secret military 
tribunals run according to procedural rules that bear scant resemblance 
to normal military justice.
    The extreme nature of these new measures and the arbitrary way in 
which they were adopted are stirring a growing uneasiness among both 
Republicans and Democrats in Congress, as well as America's overseas 
allies. Yet so far the voices of opposition have been timid. It is 
never easy to criticize a president in wartime. It is especially 
difficult during this war, which began with the killing of thousands of 
civilians here at home.
    But if the antiterrorism effort is to be a genuine success, 
Americans must speak up. We do not want history to record this as one 
of those mixed moments in which the behavior of our government failed 
to live up to the performance of our troops in the field. We do not 
want to remember this as a time when the nations of the world united in 
a campaign against terrorists, and then backed away when America 
attempted to prosecute foreign nationals in secret trials conducted 
according to unfair rules.
    The administration has awarded itself some of these powers, which 
go well beyond those just granted in the antiterrorism legislation 
Congress approved at its request only a few weeks ago. It is now 
reported that Attorney General John Ashcroft is considering a plan to 
relax rules barring the Federal Bureau of Investigation from spying on 
domestic religious and political groups without probable cause. The 
Founding Fathers, properly wary of an unrestrained executive branch, 
created our system of checks and balances precisely to guard against a 
president and his aides grabbing powers like these without 
Congressional approval or the potential for judicial review. Mr. 
Ashcroft's appearance before the Senate Judiciary Committee this week 
should provide an opportunity for senators from both parties to express 
their concerns.
                           secret detentions
    One of the most troubling moves by the administration has been the 
secret and in some cases prolonged detention of suspects rounded up 
after Sept. 11. The Justice Department, which has offered a shifting 
series of explanations as to why this is necessary, most recently 
suggested that it was responding to the possibility that Osama bin 
Laden might have sent ``sleeper'' agents to the United States. The 
American system does not hold with the idea of incarcerating a large 
group of people who it seems to have no credible reason to believe are 
dangerous, out of vague concern that somewhere among them might be a 
future law-breaker.
    The administration certainly has a right to arrest people who are 
in the country illegally, and deport them after a judicial hearing. If 
the federal government had consistently kept track of visitors who 
failed to leave at the appointed time, it would have been harder for 
the terrorists to carry out their attacks in, New York and Washington. 
But there appears to be no evidence that the vast majority of those 
picked up on immigration charges are guilty of anything else, and the 
punishment must fit the crime. Now, the places they are held and in 
most cases their names are being kept from the public. Meanwhile there 
is mounting anecdotal evidence suggesting that some detainees have been 
held under harsh conditions with limited access to legal counsel.
    Mr. Ashcroft retreated last week from some of his stonewalling and 
filled in certain previously missing details about 548 people in 
custody for immigration violations, while still refusing to reveal 
their names. He did release the names, along with other details, for 93 
people charged with other, mostly minor crimes. But it was far short of 
the sort of disclosure the situation calls for.
                           military tribunals
    It is by no means clear that the president has the authority to set 
up military tribunals without specific Congressional authorization. For 
the administration to act unilaterally in this sphere is no trifling 
matter. Beyond trespassing on the separation of powers, it could 
undercut the legality of any military tribunal proceedings. The 
precedent the administration cites - Franklin Roosevelt's use of secret 
military commissions to try eight German saboteurs caught on American 
soil during World War II - is not reassuring. That trial, which 
actually did have the support of a Congressional declaration, was an 
embarrassing skirting of the legal process that occurred mainly to 
cover up the F.B.I.'s failure to listen when one of the saboteurs 
attempted to confess and turn in his comrades.
    The military tribunals authorized by President Bush have little 
relation to actual military justice. Under normal military law, trials 
are not closed to the public, defendants have a right to review all the 
evidence presented against them, and they cannot be sentenced to death 
without a unanimous decision by the officers who sit as judges. 
Defendants also can appeal their cases to higher military courts, and 
to the Supreme Court. The Bush courts are free to proceed in secret, to 
withhold evidence from defendants and to deliver capital sentences if 
two-thirds of the judges consent.
    Perhaps most disturbing is the fact that under the administration's 
order, the president's power to insist on military justice is not 
limited to accused terrorists who are captured overseas. The order's 
breadth is astonishing, allowing for the indefinite incarceration and 
trial of any non-citizen the president deems to be a member of Al 
Qaeda, to be involved in international terrorism of any type, or to be 
harboring terrorists. After Sept. 11, Americans were introduced to any 
number of homeowners who sheltered the men who were about to become 
hijackers, with no realization that they were anything but students. 
The scope of these powers should make the potential for abuse clear. 
The fact that the administration drew them that way should undermine 
confidence in its self-restraint.
                          faith in the courts
    The Bush administration appears to have no faith in the American 
criminal justice system's ability to try terrorists fairly and openly, 
despite the fact that prosecutors have successfully brought to justice 
the men accused of the first World Trade Center bombing and the attack 
on the American embassies in Kenya and Tanzania.
    Civilian courts are not as fragile as the administration fears. For 
one thing, longstanding federal laws make it possible to sanitize 
intelligence information so that it can be introduced as evidence in 
trials without compromising spying methods. Courts have also given 
greater latitude to prosecutors in bringing overseas defendants to 
trial even if they have not been accorded a traditional Miranda warning 
about their rights before they are questioned after their capture.
    The administration has argued that even if the powers it is seizing 
are broad, it will not use them abusively. This has been a constant 
theme of Mr. Ashcroft and the administration in general - that they are 
people who can be trusted to use these broad, repressive rules wisely. 
That is not the way the American system works. This is a nation built 
around the rule of law, not faith in the goodness of particular 
officials.
    At a time when the nation is reaching out to create and maintain a 
global coalition against terrorism, the Bush administration is taking 
us down a path that will surely wind up embarrassing the country and 
undermining our own standing as a defender of international human 
rights and global justice. The United States, which constantly 
criticizes other countries for holding secret trials, and for refusing 
to guarantee political prisoners due process, is breaking faith with 
its own standards. It is no wonder that European countries are uneasy 
about extraditing anyone to face such tribunals. Our country assures 
the world that its case against Osama bin Laden is a firm one, but if 
he is tried in secret, large parts of the world will never believe in 
his guilt.
                            one rule of law
    The administration has been able to push so far down the road 
toward negating civil liberties without encountering much resistance 
because the parallel system it is creating only affects non-citizens. 
Mr. Ashcroft, for example, is not proposing to wiretap the 
conversations of American prisoners as they talk to their attorneys. 
These are special rules for outsiders, a fact that is supposed to make 
those of us on the inside feel safe.
    The country does treat non-citizens differently from Americans. 
Most important, authorities can deport them if they fail to live up to 
the terms of their visas. But the right to a fair trial, to consult 
with a lawyer beyond the range of government microphones and protection 
against being held in secret for minor crimes are not for Americans 
alone. We believe that they are the rights of all human beings. Our 
history is a story of continuous struggles to keep the government from 
sectioning off one segment of humanity as unworthy of the same basic 
civil rights as everyone else. This is not the time to start infringing 
the rights of people whose only relationship with international 
terrorists may be a shared nationality, religion or ethnic background.
    We will be judged not by how we hold to our values when it is easy, 
but when it is difficult. The world is watching.

                                

      Article by James Orenstein, New York Times, December 6, 2001

               Rooting Out Terrorists Just Became Harder
    The debate about President Bush's order allowing suspected 
terrorists to be tried by military courts has focused on questions of 
constitutionality. There is an additional, practical concern: The order 
may actually make it harder to prevent and punish terrorism.
    Law enforcement is increasingly a global effort, and nowhere more 
so than in the fight against terrorism. Federal agents routinely 
exchange information with foreign police and seek to bring criminals 
arrested abroad to the United States for trial. But that cooperation is 
imperiled when foreign governments don't trust us to respect the basic 
rights of the people we ask them to send us. Just two weeks ago, Spain 
said it would not extradite eight suspected terrorists without 
assurances that their cases would be kept in civilian court. Thus, even 
without a single military trial, the order is already undermining our 
ability to bring terrorists to justice.
    The order can also harm our ability to participate in foreign 
investigations of terrorism against Americans abroad, like the bombing 
of the Khobar Towers or the attack on the destroyer Cole. In such 
cases, the Federal Bureau of Investigation tries to become as involved 
as possible, lest a suspect be executed by the host government before 
our agents can question him or follow up on leads to other terrorists. 
But our requests will be less persuasive when we claim the right to 
subject foreign nationals to secret military trials and even execute 
them without judicial review.
    Actually using military tribunals could also reduce our ability to 
uncover and prosecute terrorist cells operating in this country. The 
president's order could apply to a green-card holder who has lived in 
America for decades and is suspected of only tenuous ties to terrorism, 
but not to an American citizen who actually carries out a deadly plot 
for Al Qaeda--like Wadih el-Hage, who was recently convicted (in a 
civilian court) for bombing the American embassies in Kenya and 
Tanzania. This discrepancy causes at least two problems.
    First, it threatens a basic tactic in fighting complex criminal 
organizations: prosecuting a lowlevel member to help develop more 
evidence for another case against someone higher in the organization's 
chain of command. Indeed, much of what law enforcement now knows about 
Al Qaeda was developed as a result of civilian trials and 
investigations. But if one suspected terrorist is tried by a military 
tribunal without the usual constitutional safeguards, important 
evidence uncovered in that trial could be suppressed on constitutional 
grounds in later civilian trials, thus hampering our ability to 
prosecute the full range of people engaged in terrorism.
    Second, prosecutors have greater success when they put as many 
defendants on trial at the same time as possible. For two decades they 
have used the federal racketeering law which was recently amended to 
apply in terrorism cases--to do just that. This tactic allows the 
prosecution to paint a fuller picture of the organization for the jury, 
and it helps secure convictions, especially against lower-level members 
who might fare better if tried alone. Since President Bush has said the 
order will be used sparingly, some terrorism defendants tried in 
civilian court could have a better chance of being acquitted because 
their co-conspirators are not in the courtroom with them. There is no 
need to take such chances.
    The president argues that military tribunals will protect civilian 
jurors against reprisals from terrorists, but federal agents have fully 
protected judges, jurors and witnesses in many trials posing similar 
risks. Classified information is already protected from disclosure in 
civilian trials by the Classified Information Procedures Act. And the 
administration is unconvincing when it argues that evidence seized in a 
``war zone'' would be difficult to authenticate for use in civilian 
courts. Federal civilian courts have a low standard for 
authentication--it boils down to asking, ``Is it more likely than not 
that this evidence is what you say it is?'' It's almost inconceivable 
that a military tribunal could allow evidence to be admitted more 
easily and still claim to be fair.
    Our government has decades of experience and success in using 
civilian courts to combat organized crime, and it has successfully 
applied that experience to fighting terrorism. Abandoning that system 
for military tribunals needlessly blunts some of our society's most 
effective weapons in that fight.
    James Orenstein is a former federal prosecutor and was associate 
deputy attorney general from 1999 to 2001.

                                

   Statement of Allan M. Spencer, Jr., Parkway Christian Fellowship, 
                          Birmingham, Alabama

    The Honorable Senators Jeff Sessions and Charles Schemer
    This is in regards to the Military Tribunal that you requested.
    In my 23 years in the military my associates and I were of the 
opinion that there was never a case where the person on trial was 
incorrectly judged, either guilty or innocent. Unlike civil courts I 
contribute a lot of this to the fact that cases cannot be thrown out 
based on trivial technicalities. Also the fact that one individual can 
block a decision by a jury in a civil court is a catastrophe
    Finally, while serving in Korea as a wing operations officer I was 
asked by a defendant to be has defense attorney in a they case. This 
afforded me an opportunity to see a military court in action. The base 
legal officer, who is required to be a law school graduate, did a 
remarkable job as judge. Incidentally the young airman was found 
innocent. The trial law lawyer was a law school graduate also.
    A sampling of the people I have tallied to here are in favor of 
President Bush's plan to use a military tribunal for the terrorists war 
criminals.
    Our Mission: ``To turn unchurched people into Spirit-.filled 
followers of Jesus Christ''

                                

 Statement of Ralph G. Neas, President of People For the American Way, 
                            Washington, D.C.

    Soon after the Sept. 11 tragedies, President Bush delivered a 
stirring address to the American people. These vicious attacks against 
our nation, the president said, were designed to strike not only the 
Pentagon and the World Trade Center towers, but also the core values of 
our democracy. The terrorists may have taken thousands of innocent 
lives, but they could not take the fundamental freedoms that are 
enshrined in our Constitution. However, People For the American Way is 
deeply concerned that unilateral, arbitrary powers being exercised by 
Attorney General John Ashcroft and others in the administration-under 
the guise of fighting terrorism-subvert a critical principle on which 
the Constitution was framed: the principle of ``checks and balances.''
    To Thomas Jefferson, a system of checks and balances was vital. 
Jefferson wrote that he and other founders labored to create a 
government that ``should not only be founded on free principles,'' but 
also ensure that ``the powers of government should be so divided and 
balanced. . .that no one (branch) could transcend their legal limits, 
without being effectively checked and restrained by the others.'' 
Sadly, the attorney general and his allies are acting in ways that 
threaten to circumvent these checks and balances, effectively amending 
our Constitution and our laws by executive fiat.
    People For the American Way has applauded both the president and 
the attorney general for affirming American pluralism and condemning 
hate crimes against people who are-or are perceived to be-Muslims or 
Arab Americans. However, a spate of orders approved recently by Mr. 
Ashcroft and the Justice Department are extremely troubling. They have 
ignored, even discarded, fundamental constitutional principles. Even 
worse, they have revealed a strong disdain for two critical pillars of 
our democracy: Congress and the courts.
    Indeed, not long after the ink was dry on the extremely expansive 
counter-terrorism law, the attorney general and others in the 
administration marched forward with a series of new orders and policies 
that undermine the long-held principle of attorney-client privilege; 
attempt to legitimize the withholding of information about people being 
detained; establish military tribunals with no rights of appeal; and 
pose other serious threats to the Constitution and our democratic 
principles. These orders endanger the right to legal counsel, the right 
to due process, and other constitutional freedoms.
    The vision of Jefferson and other founders has been cast aside by 
Mr. Ashcroft and the Justice Department. The attorney general's public 
statements pay lip service to oversight, but his actions suggest that 
he believes the Executive Branch is free to justify and execute 
virtually any action in the name of fighting terrorism and then police 
the action on its own terms-without proper oversight from the courts or 
Congress.
    The recently signed executive order on military tribunals reflects 
the growing arrogance of senior officials in the Executive Branch. 
First, the administration embraced military tribunals without first 
consulting with Congress. It is also noteworthy that unlike the example 
that the administration has cited to justify this executive order-
German saboteurs during World War II--the current push for military 
tribunals is occurring at a time when Congress has not approved a 
formal declaration of war. Second, we're not talking about an order 
that simply covers people who enter our country illegally to commit 
sabotage or who are captured on the battlefield. The order is worded so 
broadly that it could apply to legal residents who have lived in the 
U.S. for many years. Third, absent from the order are several key 
rights that the Uniform Code of Military Justice provides-a public 
trial, proof beyond a reasonable doubt, the right of the accused to 
select counsel, and rights to an appeal. The administration hasn't 
embraced military trials, but rather its version of a military trial-
the complete details of which it has not disclosed.
    In addition to the other branches of government, another important 
`check' on the abuse of power is the people. Writing in the Federalist 
papers, Alexander Hamilton identified the ``two greatest securities'' 
that the American people had to hold their elected officials 
accountable. The first was ``the restraints of public opinion,'' and 
the second was ``the opportunity of discovering with facility and 
clearness'' whether government officials have abused their authority. 
Sadly, the public is in a poor position to assess whether the arrest 
and detention of more than a thousand people by federal officials are 
in keeping with our democratic values. This is because the attorney 
general has provided very little information about the detainees that 
were apprehended in the wake of the Sept. 11 tragedies.
    People For the American Way is one of numerous civil liberties 
organizations that recently filed a Freedom of Information Act request 
to determine the full scope of these detentions. But our FOIA request 
has been denied. We know that at one point as many as 1,147 people were 
being held by federal officials under their arrest-and-detention 
campaign. Yesterday, the attorney general released incomplete numbers, 
revealing that more than 600 people remain in federal custody in 
connection with the Sept. l 11th investigations. The attorney general 
provided figures on the number of detainees being held on immigration 
violations or federal criminal charges. But the Justice Department has 
yet to update the total number in custody. And, during yesterday's 
press conference, Mr. Ashcroft declined to release even the number of 
detainees being held as ``material witnesses.'' The attorney general 
refused to release names of most of the detainees. Even assuming that 
Mr. Ashcroft's reasons are valid, there is no justification for why the 
Justice Department continues to withhold other important information 
about detainees-for example, how long each person has been in federal 
custody; what immigration law, if any, they are accused of violating; 
and the names of their defense attorneys.
    Furthermore, it is not clear when or if Mr. Ashcroft will provide 
updated information on the number of detainees in the futureor if the 
figures he released yesterday were simply intended to defuse the 
controversy for now. The extremely limited information that has been 
made public hinders the ability of the civil rights and legal 
communities to adequately monitor the reasons, the length and the 
conditions of these detentions. In addition, federal officials have 
failed to share important information with Congress and to consult with 
the House and Senate in other meaningful ways that provide oversight.
    We firmly believe that Congress must move quickly to ensure that 
anti-terrorism efforts are carried out in a way that balances our 
national security with the constitutional freedoms that we cherish. We 
believe that the following goals should guide Congress in its actions:

         Congress should insist that the administration restore 
        to the judicial and legislative branches their rightful and 
        constitutional roles. Our Constitution establishes a system of 
        checks and balances. Through the years, these checks and 
        balances have helped to curtail excesses on the part of the 
        Executive Branch. Meaningful judicial review and oversight 
        should not be short-circuited by the attorney general or other 
        federal officials. Likewise, it has been disturbing to see this 
        administration circumvent Congress' critical role, for example, 
        in consenting to the establishment of military tribunals and 
        the standards that would apply to these trials. Congress should 
        put procedures in place that enable ongoing consultation with 
        the attorney general and other law enforcement officials.
         Congress should urge federal law enforcement officials 
        to follow and respect existing legal avenues. There are already 
        sufficient legal avenues through which the attorney general and 
        federal officials can seek authority for taking extraordinary 
        actionssuch as detaining suspects for extended periods of time-
        in the interest of protecting the health and safety of 
        Americans. For example, if they feel extraordinary 
        circumstances justify the request, federal officials already 
        have the ability to ask a judge to permit them to violate 
        attorney-client privilege. Allowing the attorney general and 
        the Department of Justice to delegate to themselves new and 
        sweeping powers-on top of the immense new powers granted by 
        recent legislation jeopardizes our constitutional liberties.
         House and Senate leaders should develop a plan to 
        provide sufficient oversight for the nation's anti-terrorism 
        efforts. In recent weeks, the chairs of various committees in 
        both the House and Senate have claimed authority or expressed a 
        desire to monitor the federal government's efforts to prevent 
        and combat terrorism. To avoid duplicative efforts and ensure 
        proper oversight, we urge the leadership in both chambers to 
        determine, in a bipartisan spirit, the appropriate committees 
        to fulfill this critical role.
         A Congressional board of inquiry should be established 
        to examine the events and environment within which the Sept. 11 
        tragedies occurred. This inquiry should review the work of our 
        nation's intelligence forces and law enforcement agencies, 
        including what they knew and how they were operating and 
        cooperating in the weeks and months before these terrorist 
        attacks. This effort would closely resemble the government 
        inquiry that was conducted to examine how and why the attack on 
        Pearl Harbor occurred. These efforts should be conducted in the 
        interest of learning lessons and preventing future 
        catastrophes, rather than casting blame. Such efforts also 
        could be valuable in determining whether there is truly a need 
        for changes in federal investigative or police powers, rather 
        than basing changes on the assumptions of the attorney 
        generalwithout Congressional or judicial approval.

    Finally, it is also worth noting that in today's Washington Post, 
eight former high-ranking FBI officials-including a former director-
raise serious concerns about the arrest-and-detention campaign that has 
been waged by John Ashcroft and the Justice Department. Their criticism 
covered three areas: The Ashcroft approach hasn't worked in the past, 
it might undercut efforts to infiltrate terrorist cells, and it could 
lead to abuses of civil liberties. Former FBI Director William Webster 
said that during his tenure the agency used ``good'' and ``lawful'' 
investigative techniques, and he warned that the Ashcroft approach 
``carries a lot of risk with it.''

                                

      Article by William Safire, New York Times, November 15, 2001

                       Seizing Dictatorial Power
    Washington--Misadvised by a frustrated and panic-stricken attorney 
general, a president of the United States has just assumed what amounts 
to dictatorial power to jail or execute aliens. Intimidated by 
terrorists and inflamed by a passion for rough justice, we are letting 
George W. Bush get away with the replacement of the American rule of 
law with military kangaroo courts.
    In his infamous emergency order, Bush admits to dismissing ``the 
principles of law and the rules of evidence'' that undergird America's 
system of justice. He seizes the power to circumvent the courts and set 
up his own drumhead tribunals--panels of officers who will sit in 
judgment of noncitizens who the president need only claim ``reason to 
believe'' are members of terrorist organizations.
    Not content with his previous decision to permit police to 
eavesdrop on a suspect's conversations with an attorney, Bush now 
strips the alien accused of even the limited rights afforded by a 
court-martial.
    His kangaroo court can conceal evidence by citing national 
security, make up its own rules, find a defendant guilty even if a 
third of the officers disagree, and execute the alien with no review by 
any civilian court.
    No longer does the judicial branch and an independent jury stand 
between the government and the accused. In lieu of those checks and 
balances central to our legal system, noncitizens face an executive 
that is now investigator, prosecutor, judge, jury and jailer or 
executioner. In an Orwellian twist, Bush's order calls this Soviet-
style abomination ``a full and fair trial.''
    On what legal meat does this our Caesar feed? One precedent the 
White House cites is a military court after Lincoln's assassination. 
(During the Civil War, Lincoln suspended habeas corpus; does our war on 
terror require illegal imprisonment next?) Another is a military 
court's hanging, approved by the Supreme Court, of German saboteurs 
landed by submarine in World War II.
    Proponents of Bush's kangaroo court say: Don't you soft-on-terror, 
due-process types know there's a war on? Have you forgotten our 5,000 
civilian dead? In an emergency like this, aren't extraordinary security 
measures needed to save citizens' lives? If we step on a few toes, we 
can apologize to the civil libertarians later.
    Those are the arguments of the phony-tough. At a time when even 
liberals are debating the ethics of torture of suspects--weighing the 
distaste for barbarism against the need to save innocent lives--it's 
time for conservative iconoclasts and card-carrying hard-liners to 
stand up for American values.
    To meet a terrorist emergency, of course some rules should be 
stretched and new laws passed. An ethnic dragnet rounding up visa-
skippers or questioning foreign students, if shortterm, is borderline 
tolerable. Congress's new law permitting warranted roving wiretaps is 
understandable.
    But let's get to the target that this blunderbuss order is intended 
to hit. Here's the big worry in Washington now: What do we do if Osama 
bin Laden gives himself up? A proper trial like that Israel afforded 
Adolf Eichmann, it is feared, would give the terrorist a global 
propaganda platform. Worse, it would be likely to result in widespread 
hostage-taking by his followers to protect him from the punishment he 
deserves.
    The solution is not to corrupt our judicial tradition by making bin 
Laden the star of a new Star Chamber. The solution is to turn his cave 
into his crypt. When fleeing Taliban reveal his whereabouts, our 
bombers should promptly bid him farewell with 15,000-pound daisy-
cutters and 5,000-pound rock-penetrators.
    But what if he broadcasts his intent to surrender, and walks toward 
us under a white flag? It is not in our tradition to shoot prisoners. 
Rather, President Bush should now set forth a policy of ``universal 
surrender": all of A1 Qaeda or none. Selective surrender of one or a 
dozen leaders--which would leave cells in Afghanistan and elsewhere 
free to fight on--is unacceptable. We should continue our bombardment 
of bin Laden's hideouts until he agrees to identify and surrender his 
entire terrorist force.
    If he does, our criminal courts can handle them expeditiously. If, 
as more likely, the primary terrorist prefers what he thinks of as 
martyrdom,, that suicidal choice would be his and Americans would have 
no need of kangaroo courts to betray our principles of justice.

                                

      Article by William Safire, New York Times, December 6, 2001

                         `Voices of Negativism'
    Washington--Preparing to tell the Senate Judiciary Committee where 
to get off today, Attorney General John Ashcroft lashed out at all who 
dare to uphold our bedrock rule of law as ``voices of negativism.'' (A 
nattering nabob, moi?)
    Polls show terrorized Americans willing to subvert our Constitution 
to hold Soviet-style' secret military trials. No presumption of 
innocence; no independent juries; no right to choice of counsel; no 
appeal to civilian judges for aliens suspected of being in touch with 
terrorists.
    President Bush had no political motive in suspending, with a stroke 
of his pen, habeas corpus for 20 million people; his 90 percent 
popularity needs no boost. The feebleness of the Democrats' response, 
however--with the honorable exception of Vermont's Senator Pat Leahy is 
highly political. Tom Daschle is waffling wildly because he is 
terrified of being slammed as ``soft on terrorism,'' which might 
overwhelm his strategy of running against ``the Bush recession'' in the 
2002 elections.
    With most voters trusting the government with anything, and with an 
attorney general and his hand-picked F.B.I. boss having the publicity 
time of their lives, one might expect us negativists to be in disarray.
    Here's why we are not: The sudden seizure of power by the executive 
branch, bypassing all constitutional checks and balances, is beginning 
to be recognized by cooler heads in the White House, Defense Department 
and C.I.A. as more than a bit excessive.
    Not that they'll ever admit it publicly; Bush will stick to his 
shaky line that civil courts cannot be trusted to protect military 
secrets and, as fearful Orrin Hatch assures him, jurors will be too 
scared to serve. But his order asserting his power to set up drumhead 
courts strikes some of his advisers, on sober second thought, as 
counterproductive.
    Set aside all the negativist libertarian whining about 
constitutional rights, goes his newest advice, and forget about 
America's moral leadership. Be pragmatic: our notion of a kangaroo 
court is backfiring defeating its antiterrorist purpose.
    At the State Department, word is coming in from Spain, Germany and 
Britain where scores of Al Qaeda suspects have been arrested--that the 
U.N. human rights treaty pioneered by Eleanor Roosevelt prohibits the 
turning over of their prisoners to military tribunals that ignore such 
rights. That denies us valuable information about ``sleepers'' in Osama 
bin Laden's cells who are in the U.S. planning future attacks. (Those 
zealots who cited F.D.R.'s saboteur precedent forgot about Eleanor.)
    At the C.I.A., data about China, Russia and other closed societies 
is gleaned from debriefing returning travelers. But U.S. kangaroo 
courts would legitimize harsh proceedings overseas against U.S. 
business executives, academics and tourists--thereby shutting down 
major intelligence sources. (Interviewing 5,000 Muslim students and 
visitors, however, is seen by our spooks as an excellent opportunity to 
recruit Arabicspeaking agents.)
    At Justice, those not in the Ashcroft-Mueller axis view the 
tribunals as giving priority to punishment for past attacks rather than 
helping to prevent future attacks. Thus Ashcroft undermines Justice's 
justification for its nationwide dragnet.
    At Defense, the hastily drawn order must be translated into a 
system of trials that would not be invalidated by a Supreme Court. 
Secretary Donald Rumsfeld has refused to follow lockstep behind 
Ashcroft in deriding strict constructionists as negativist. On the 
contrary, Rumsfeld calls the informed outcry ``useful'' in refining the 
order The hopeful news is that Rumsfeld has reached outside the 
Pentagon to get advice legal minds not conflicted by administration 
ties. Lawyers inside the armed services are also determined to resist 
the subversion of the Uniform Code of Military Justice by Bush's 
diktat.
    Many attorneys friendly to this White House know that order was 
egregiously ill drafted. The White House counsel, Alberto Gonzales, 
defended the order on this Op-Ed page by denying or interpreting away 
its most offensive provisions. That's his signal to the Pentagon 
general counsel, William Haynes, to give the broadest interpretation to 
the order's five words promising non-citizens ``a full and fair 
trial.''
    Otherwise, our Constitution would be set aside by Cicero's ancient 
inter arma silent leges--in time of war, the law falls silent.

                                

 Editorial in St. Louis Post-Dispatch, November 12, 2001, Monday Five 
                           Star Lift Edition

                         Invading A Confidence
                            civil liberties
    THE LAWYER-CLIENT--privilege is to the law what the seal of 
confession is to religion. Just as a priest can only tend to the 
penitent who can confess his sins, the attorney can only defend a 
person with whom he can communicate freely.
    This privilege is ancient, sacrosanct and virtually inviolable. It 
is a cornerstone of an adversary system that accords a suspect the 
presumption of innocence and a lawyer to defend him. A lawyer cannot 
disclose anything the client says unless the information involves an 
ongoing crime, imminent death or serious bodily harm. If a murderer 
discloses the location of a victim's body, for example, the lawyer 
shouldn't tell the police. The privilege is so durable, in fact, that 
it survives the client's death; Kenneth Starr di scovered that when he 
tried unsuccessfully to pry into what Vincent Foster told his lawyer 
before his suicide.
    For all of these reasons, civil libertarians and many lawyers were 
shocked by Attorney General John D. Ashcroft's recent order allowing 
agents to snoop on communications between terror suspects and their 
lawyers. Robert Hirshon, president of the American Bar Association, 
said it ran ``squarely afoul'' of the right to counsel. Sen. Patrick 
Leahy, Democratic chairman of the Senate Judiciary Committee, 
questioned Mr. Ashcroft's authority to authorize the surveillance.
    The attorney general issued the rule on an emergency basis, without 
allowing the normal public comment period. It allows the Justice 
Department to monitor conversations and intercept mail between suspects 
and their lawyers for up to a year, without court order. Mr. Ashcroft 
must certify that there is a ``reasonable suspicion'' that a inmate is 
using communications with his lawyers to ``facilitate acts of 
terrorism.''
    The Justice Department said it would protect the suspects' rights 
by notifying them that the government is listening. The monitoring will 
be conducted by a ``taint'' team that will only turn over information 
to prosecutors or investigators if there is an imminent threat of 
violence or with the approval of a federal judge. None of the 
information could be used in court.
    One troubling aspect of Mr. Ashcroft's order is that it covers 
people who have not been convicted of crimes, but are being held as 
material witnesses or on allegations of minor immigration or law 
violations. The government has detained more than 1,100 people on these 
grounds since Sept. 11. It won't release their names, where they are 
detained or the charges against them. The surveillance of these 
detainees' conversations with their lawyers deepens their isolation.
    Irwin Schwartz, president of the National Association of Criminal 
Defense Lawyers, says that the Ashcroft rule would deny a suspect of 
the right to a lawyer. ``If we can't speak with a client 
confidentially, we may not speak with him at all,'' he said.
    One of the great challenges of Sept. 11 is to protect America's 
safety without sacrificing important rights. Mr. Ashcroft failed to 
achieve that balance when he invaded the legal confessional.

                                

 Editorial in St. Louis Post-Dispatch, November 27, 2001, Tuesday Five 
                           Star Lift Edition

                          Ashcroft Overreaches
                            civil liberties
    KEY U.S.--senators are complaining, and rightly so, that Attorney 
General John D. Ashcroft is overreaching his mandate to fight terrorism 
with unilateral plans to listen in on lawyers' conversations with their 
clients and to try suspected terrorists in front of military tribunals.
    ``We all agree that there should be justice here, but let's be a 
little bit careful how we do it,'' Sen. Patrick J. Leahy, D-Vt., said 
Sunday on NBC's ``Meet the Press.''
    Mr. Leahy, chairman of the Senate Judiciary Committee, and some of 
his colleagues were upset to read in newspapers of ``ad-hoc, outside-
the-justice-system methods,'' for combating terrorism. In particular, 
Mr. Leahy said he was dismayed by a surprise rule change that will 
allow the government to eavesdrop on privileged conversations between 
lawyers and defendants charged with terrorism-related crimes. He also 
disagrees with the administration's decision that some suspected 
terrorists could be tried by a military tribunal, with less stringent 
rules on evidence and public accessibility.
    Mr. Leahy's comments about the failure to consult Congress were 
echoed by the ranking Republican on the Judiciary Committee, Sen. Orrin 
Hatch of Utah. The two promised to grill Mr. Ashcroft in December on 
his actions, and suggested the attorney general set aside ``several 
hours'' for this appearance.
    ``I think the attorney general owes the country--certainly owes the 
Congress--an explanation,'' Mr. Leahy said.
    He's right. Apart from questions of constitutionality, it is 
important that the administration consult congressional leaders in both 
parties because they are essential allies in the war on terrorism. Mr. 
Leahy, himself the target of an anthrax-laden letter, shepherded the 
administration's anti-terrorism legislation, with sweeping new legal 
authority, through the Senate last month. Instead of blind-siding 
bipartisan allies with surprise announcements of draconian tactics 
(which may be constitutional, but not necessarily desirable), Mr. 
Ashcroft should be consulting them closely. That would not only build 
unity, but might also help avoid blunders.
    As Mr. Leahy said, ``I don't know why all this has to be done by 
fiat at the White House. . . .Why not trust the normal process of our 
government?"
    Indeed. The eyes of the world are on America, and the normal 
process of our democratic government. If we wish to be perceived as a 
nation that believes in liberty and justice for all, we must behave 
like one.

                                

Statement of David J. Scheffer, Senior Fellow, U.S. Institute of Peace, 
Washington, D.C., Former U.S. Ambassador at Large for War Crimes Issues 
                              (1997-2001)

    (Views expressed in this statement are solely those of the author.)
                 Reality Check on Military Commissions
    President George W. Bush's order of November 13, 2001, authorizing 
U.S. military commissions to prosecute international terrorists in 
truncated judicial proceedings was a predictable option for him to 
activate in the campaign against global terrorism. Circumstances no 
doubt will arise where having this option available will facilitate the 
dual needs of justice and deterrence when particular terrorists or 
their operatives fall into U.S. custody. But Bush Administration 
officials, with some mixed signals, have largely marketed the military 
commissions as the primary option for prosecution. In reality, military 
commissions should be the exception, not the rule. When used, they 
should be properly constituted and subject to rules that protect the 
due process rights of defendants and uphold American adherence to the 
rule of law. Our ability to achieve extradition of terrorist suspects 
to U.S. jurisdiction hangs in the balance.
    There is no legitimate target, civilian or military, for an 
international terrorist. If a terrorist attacks a military target and 
kills only military personnel, that act is still criminal. That is what 
recent international anti-terrorism conventions and the hefty U.S. 
criminal statutes enacted to prosecute terrorists provide. Keeping 
terrorists in the terrorist box has its advantages for prosecutors and 
for achieving justice. Using antiterrorism laws in federal courts, 
prosecutors have demonstrated their ability to nail terrorists to the 
wall in successful trials, respectful of due process rights, for the 
1993 World Trade Center bombing and the 1998 U.S. Embassy bombings in 
Africa (involving al Queda defendants).
    In contrast, once a terrorist suspect is categorized as an alleged 
war criminal or combatant and prosecuted before a military commission 
for violations solely of the law of war, his successful prosecution can 
be impeded. Even if the individual is regarded as an unlawful 
belligerent because of the character of his warfare, the military 
commission would be pressed to concede that under certain circumstances 
that alleged war criminal may have had or his colleagues may have 
future theoretical rights to attack legitimate military targets in the 
armed conflict already recognized by the United States, particularly if 
they take simple steps to transform into lawful belligerents. The 
defendant, particularly an aloof leader or conspirator, may try to make 
the case that he was indeed a lawful belligerent in his particular case 
and that military targets, like the Pentagon, Khobar Towers, and the 
USS Cole, were legitimate strikes. Why would we want to risk conceding 
any belligerent status, lawful or unlawful, to a terrorist?
    Military commissions have limited jurisdiction over violations of 
the law of war and, if authorized by statute, other offenses. But 
currently the Uniform Code of Military Justice only establishes 
jurisdiction over the law of war. Article 21 of the Uniform Code of 
Military Justice and the Rules of Court Martial (201(g)) establish that 
for a military commission to extend its jurisdiction beyond the law of 
war, Congressional action is needed. Absent a new Act of Congress, a 
U.S. military commission would lack authority to enforce anti-terrorism 
laws or even crimes against humanity that do not overlap with the law 
of war. Reliance only on the law of war would deny military prosecutors 
potent laws that have proven their worth in federal trials of al Queda 
defendants. The law of war is not as well adapted to the prosecution of 
terrorists as are the anti-terrorism laws. For example, conspiring to 
plan or participate in an act of terrorism is easier to prosecute under 
federal criminal law than would be the same conduct under the law of 
war, which is weak on conspiracy charges and probably would require a 
higher threshold of proof for conduct more egregious than that found in 
the anti-terrorism laws.
    Most terrorist suspects who survive lethal force likely will be 
apprehended by foreign rather than U.S. authorities. Hundreds 
reportedly already have been detained this way. In Afghanistan, 
thousands of non-Afghan Taliban fighters and al Queda suspects 
currently face the prospect either of a fight to the death or of their 
surrender to predictably merciless Islamic trials staged by the 
Northern Alliance and over which the United States may exercise little 
if any control. U.S. military commissions may be largely irrelevant 
under these circumstances.
    Beyond Afghanistan, foreign officials will not ponder long about 
whether to extradite terrorist suspects in their custody to U.S. 
control. The president's military order is drafted so broadly and 
leaves so many doubts about due process rights that it is improbable 
foreign authorities would extradite terrorist suspects to stand trial 
in any U.S. court. Foreign governments will balk at the paucity of 
guaranteed due process rights in the military commission and refuse to 
take the predictable heat for transferring a terrorist suspect into the 
black hole promised by the executive order. Already, Spain has 
indicated that it will not extradite key al Queda suspects to the 
United States because of the prospect of trial by military commission 
and of the death penalty.
    Other anti-death penalty governments also will prohibit 
extraditions to military commissions less inclined to waive the death 
penalty than would U.S. federal courts. Even if a foreign government 
contemplated extraditing a terrorist suspect to a federal court, the 
military order (Section 2(B)(c)) could require that court to transfer 
the suspect to a military commission that would exercise exclusive 
jurisdiction, operate in a free-fire zone for due process, and 
aggressively seek the death penalty.
    Ironically, foreign (particularly European) jurisdictions that hold 
terrorist suspects and know they could be tried domestically with due 
process protections falling short of those available in U.S. federal 
courts, will look at American requests for extradition and conclude 
that Washington's abandonment of credible trial procedures and 
defendants' rights makes the United States a poor choice for a fair 
trial. In any event, foreign officials may consider it their own 
responsibility to bring to justice individuals who engaged within their 
own country to plan or commit terrorist attacks against U.S. targets. 
In terms of constructing a robust international legal architecture for 
dealing with terrorism, the optics and the practical consequences of 
having prosecutions in both U.S. and foreign courts is significant.
    The best course now would be to clean up President Bush's military 
order with U.S. Congressional action that makes military commissions 
more user friendly for foreign authorities holding terrorist suspects 
and that casts the order as an exceptional option for use only when 
U.S. federal courts truly cannot assume their rightful role in 
prosecuting international terrorists.

                                
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                              Amnesty International--U.S.A.
                                                   December 3, 2001

The Honorable George W. Bush
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

    Dear President Bush:

    We are writing to express our grave concern over your order 
authorizing military commissions to try suspected terrorists.
    Unless it is rescinded, we fear that dictators and tyrants around 
the world will invoke the Bush Administration's actions for decades to 
come when they imprison people seeking to stand up for freedom of 
religion, free speech and other rights enshrined in the United States 
Bill of Rights and championed by the United States worldwide. The 
trials conducted by such commissions will come and go, but the damage 
that this precedent will cause will continue fox many years and may 
represent one of the lasting legacies of your Administration.
    We understand that the details of the trials remain to be 
established and that the order does not place a ceiling on the 
procedures that may be applied by the military commissions. But the 
fact remains that there is very little ``floor'' established by the 
order. It permits--even if it does not require--the use of secret 
evidence and secret hearings, fails to establish an adequate burden of 
proof or to mandate the right to counsel or a privilege against self-
incrimination, and allows the death penalty without unanimous verdicts. 
These and other problems render the order itself fundamentally flawed, 
especially as a precedent, even if the procedures ultimately 
established by the Defense Department are better than the order 
requires.
    Moreover, certain aspects of the order cannot be remedied no matter 
what procedures are subsequently adopted. The order permits the 
President to designate any non-citizen, including legal United States 
residents, to be subjected to these procedures without any established 
standards or the check of independent judicial review of such 
designation. Likewise, although the order directs the Secretary of 
Defense to establish post-trial procedures, it plainly bars any 
independent review of the trials outside of the Executive branch.
    Many nations have argued that the rule of law and due process 
rights must be set aside in order to defend national security. Indeed, 
American citizens have been deprived of their rights abroad based on 
such arguments. The United States has rightly rejected such 
restrictions and the arguments for them. Thus, when the United States, 
which has been at the forefront of developing and defending minimum 
standards of due process, issues an order which does not require that 
the Department of Defense satisfy those standards, the damage done is 
enormous. We fear that many nations will issue identical orders but 
will then implement them in ways that takes full advantage of the 
inadequate ``floor'' established by the order. The credibility and 
effectiveness of the United States in opposing such repressive 
procedures will be seriously harmed by this precedent.
    We also believe that it is beyond dispute that the order, and any 
trials conducted under it, will be seen as illegitimate by the vast 
majority of nations. To this point, the United States has had the 
overwhelming support of the world community in responding to the crimes 
committed against United States citizens and the citizens of more than 
60 other nations on September 11th International law has 
provided and continues to provide ample scope for the United States to 
respond to these attacks, to bring the perpetrators to justice and to 
obtain convictions. We believe that your order will do great harm to 
the United States efforts to maintain the strong support of the world 
community in its pursuit of the perpetrators of the September 
11th attacks.
    We respectfully urge you to rescind the order.
            Sincerely.
                                          William F. Schulz
                                      Amnesty International--U.S.A.

                                               Kenneth Roth
                                                 Human Rights Watch

                                              Gay McDougall
                               International Human Rights Law Group

                                   Catherine A--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

                                               Todd Howland
                 Robert F--Kennedy Memorial Center for Human Rights

                                

 Statement of Herman Schwartz, Professor of Law, American University, 
                            Washington, D.C.

                 President Bush's Military Commissions
    President George W. Bush's order establishing military commissions 
to try ``international terrorists'' without our normal due process 
guarantees has been defended with the claim that, in Vice President 
Dick Cheney's words, ``they don't deserve the same guarantees and 
safeguards that would be used for an American citizen.'' To find and 
dispose of these terrorists, Attorney General John Ashcroft plans to 
question some 5000 young recent male immigrants and others, in addition 
to the more than 600 currently being detained.
    But who among these people, or among the other 20 million non-
citizens in the United States, all of whom could potentially be 
considered not ``deserving'' full due process, is in fact an 
``international terrorist?'' We can't know that until we try them, 
since whether they are such people is exactly what has to be proved in 
a trial. Yet the use of these secret special tribunals, with their 
denial of due process right from the moment they are detained, 
presupposes that these people fit that category. Instead of being 
presumed innocent, they are presumed guilty.
    In fact, we may never really know if a person subjected to these 
trials by commission is guilty of anything. For the process to be 
triggered, all that the Order requires is that the Attorney General and 
the President be persuaded by some FBI or CIA agent that there is 
``reason to believe'' that a resident noncitizen--someone who may have 
lived in this country peacefully and honorably for many years--has 
committed, aided, conspired or prepared something called ``acts of 
international terrorism'' that have some connection with ``injury to or 
adverse effect on the United States, its citizens, national security, 
foreign policy or economy,'' or ``harbors'' a terrorist, not even 
knowing the person harbored is one.
    And what is an ``act of international terrorism? `` It is the 
essence of legality that an offense be carefully defined so that people 
can avoid violating it and prosecutors will not be free to define it as 
they wish. Yet, ``acts of international terrorism, `` which carries the 
death penalty, is nowhere defined in the order. It is certainly not 
just violations of the ``laws of war'' as White House Counsel Alberto 
R. Gonzales claims, for that term does not appear anywhere in the 
order. Nor does the order cover only ``foreign enemy war criminals'' or 
``members or active supporters of A1 Qaeda,'' as Mr. Gonzales also 
claims, but any non-citizen, including long-term permanent residents of 
the United States, who the President has ``reason to believe'' has 
engaged in ``international terrorism.'' The category may well be 
defined by the Secretary of Defense to include innocent or minor acts, 
such as contributing to a charity that secretly supports terrorists, 
even though the person doesn't know the true purpose of the charity. It 
is an indication of the vagueness and breadth of the possible offenses 
that can be created by this order that criminality can be based on acts 
that in some perhaps insignificant way ``adversely affect. . .foreign 
policy or [the] economy.''
    The order is equally indefinite with respect to how much evidence 
is required before someone may be detained as an ``international 
terrorist.'' The law normally requires ``probable cause'' for an arrest 
or detention, with supervision by a judge either before or soon after 
the detention. But the order calls only for ``reason to believe'' and 
this can be very little, just a reason. It can, for example, be one of 
the unsubstantiated and untested near-rumors reported to the grand jury 
and now made widely available within the government under the USA-
PATRIOT Act. Moreover, no judicial review of the justification for 
believing this reason is allowed, at any time. The Wen Ho Lee and other 
FBI and CIA fiascoes, as well as Ashcroft's own sorry record on civil 
liberties, offer little assurance that these provisions will be 
administered fairly.
    And once the person is picked up and held, which may be done 
secretly, he may be charged with some ``act of international 
terrorism,'' and will have to refute these charges without counsel of 
his choice or perhaps any lawyer at all. A short secret proceeding will 
be held under rules of evidence made up by the Secretary of Defense. He 
can choose to admit the most unreliable kinds of hearsay and other weak 
evidence, which can be kept secret even from the accused. Mr. Gonzales 
says these trial will not be secret but he can offer no assurances. 
After all, we still know almost nothing about the many hundreds kept in 
detention since September 11, which seems like a more reliable 
indication of what we can expect. And, as many have noted, this is the 
most secretive administration in recent memory, shown, for example, by 
the Bush Order keeping presidential papers secret despite congressional 
legislation intended to make them public.
    This ``trial'' will be before three military personnel, not 
independent judges, only two of whom need to agree. They need not be 
convinced of guilt beyond a reasonable doubt, even if they impose a 
death sentence, and there is no right to appeal, even within the 
military system. And there will be no judicial review of the case 
against the accused. Mr. Gonzales claims that there will be ``judicial 
review'' in the civilian courts, but as he concedes, merely of ``the 
jurisdiction'' of the commissions. That only determines whether the 
commission has the authority to try the accused. Judicial review of the 
detention, the procedure, fairness, guilt or innocence, sentence or 
anything else about the case itself is barred by the order.
    We are told we need not worry because the ``American military 
justice system'' is ``the finest in the world.'' That may indeed be 
true but only when the proceedings are conducted under the Uniform Code 
of Military Justice. Nothing in the order requires these proceedings to 
be under the Code but only under such rules as the ``Secretary of 
Defense shall issue,'' which can be made up on an ad hoc basis.
    Attorney General John Ashcroft and other members of the 
Administration justify this drumhead justice because they allegedly 
fear that without such proceedings, we will not be able to convict 
these ``alien terrorists,'' assuming that we have the real culprits. 
But we obtained convictions in the World Trade Center and Embassy 
bombings, and without the disclosure of sensitive information about 
intelligence ``sources and methods,'' the other great fear--the 
carefully administered 1980 ``graymail'' statute has effectively 
disposed of many of these fears. Attorney General Ashcroft has also 
complained about lengthy trials but how can one justify ``quickie'' 
trials when death or long imprisonment is at stake?
    Finally, the Administration relies on the Supreme Court's approval 
of trial by military commission in the 1942 German saboteur case, Ex 
parte Quirin. That reliance is misplaced. President Roosevelt's Order 
was expressly limited to ``subjects, citizens or residents of any 
nation with whom we are at war.'' We are not ``at war'' with any 
nation. Rather, we are fighting an international organization of 
religiously motivated criminals. In an attempt to destroy their 
networks, the Bush Order targets not nationals of an enemy nation, but 
rather, in George Will's words, ``alien terrorists held in the United 
States.''
    Furthermore, the saboteurs in that case, as to whose guilt there 
was no doubt at all because of the defection of two of their number, 
were charged with violations of the ``law of war'' and, as noted above, 
the Bush order is far broader and much more indefinite than that.
    This order has already done much damage. Spain will not extradite 
the eight suspects in the September 11 hijacking whom it has arrested 
because they would face these military commissions, and it appears that 
other European Union members will do the same.
    Some 75 years ago Justice Louis D. Brandeis warned us against ``men 
of zeal, well-meaning but without understanding.'' We seem to have 
forgotten that.

                                

   Article by Anne-Marie Slaughter, New York Times, November 17, 2001

               Al Qaeda Should Be Tried Before the World
    Cambridge, Mass.--On Tuesday President Bush signed an executive 
order allowing the government to try accused terrorists before military 
commissions rather than in federal court. No matter how tempting or 
expedient, trials by military commission will prove disastrous--to the 
war against terrorism, to the Constitution and to the rule of law.
    The--administration favors such trials because they will allow 
sensitive evidence to be presented in secret. The rules governing the 
conduct of military commissions would be drawn up by the Pentagon, 
without regard to the safeguards and guarantees provided by the 
Constitution. And because they are likely to be held abroad, the trials 
would present no domestic security risk and would undoubtedly elicit 
less coverage from the American media.
    But if the public relations war is as important as the military 
war, as our allies and the administration insist, such trials would 
give the enemy a victory of enormous proportions. President Mohammad 
Khatami of Iran denounced the Sept. 11 attacks, but said he needed 
evidence that Osama bin Laden was responsible. Presenting evidence in 
secret will convince no one and will only fortify Mr. bin Laden's 
propaganda. And military executions of convicted terrorists after such 
trials will create a new generation of martyrs.
    Imagine how this looks to the rest of the world: Timothy McVeigh 
killed 168 of his fellow citizens. Yet he was entitled to all the 
constitutional protections and safeguards of a federal criminal trial--
held in the United States, in public. Now, when the defendants are 
foreigners, most likely Muslims, the administration of justice is left 
to an ad hoc military commission acting in secret.
    In a legal sense, too, such trials will hand the terrorists an 
important symbolic victory.Although the United States will claim that 
they are ``nonprivileged combatants''--that is, soldiers who have 
violated the laws of war--it would still be acknowledging them as 
combatants rather than common criminals. The trials will thus dignify 
terrorists as soldiers in Islam's war against America. This is exactly 
the wrong message to send. Al Qaeda members are international outlaws, 
like pirates, slave traders or torturers.
    At a deeper level, such trials challenge our identity as a people. 
Military commissions have been used rarely in the past, principally to 
try spies caught behind enemy lines. Now we are proposing them as a 
long-term mechanism to achieve one of our principal war aims--finding 
and trying terrorists. But we are also, according to President Bush, 
fighting for the values embodied in our Constitution, against an enemy 
that would destroy our way of life. How then can we violate those 
values in the process?
    If we must depart from constitutional practices, then the United 
States should prosecute accused terrorists before an international 
tribunal. The United Nations war crimes tribunal for the former 
Yugoslavia, for example, tries cases before a panel of three judges, 
not a jury. It has developed numerous procedures for presenting key 
evidence in secret and protecting the identities of crucial witnesses. 
And when Slobodan Milosevic attempted to exploit the process and 
grandstand for a television audience, the chief judge shut him down. In 
addition, it would be easier politically for countries like Pakistan, 
Egypt or Jordan to extradite defendants to an international tribunal 
than to a secret court run by the United States military.
    The difference between military commissions and an international 
tribunal is the sanction and legitimacy of the global community. An 
international tribunal would demonstrate the depth of international 
solidarity against terrorism.
    Today we have the opportunity to devise common procedures among 
nations around the world, far beyond the West. President Bush has said 
repeatedly that we must bring terrorists to justice. Trial by military 
commission is not justice--at least not justice as we understand it and 
preach it to the world. Justice is on our side. We should not forsake 
it.
    Anne-Marie Slaughter is professor of international law at Harvard 
Law School.

                                

 Statement of Anne-Marie Slaughter, William Burke-White, Commissioning 
                                Justice

    George W. Bush has announced his intention to stand firm in the 
face of mounting criticism of his plan to try terrorists in military 
commissions. But the real question is whether these tribunals will 
hamper the international judicial cooperation so vital to the pursuit 
of terrorists over the longer term. Spanish judge Baltasar Garzon has 
already refused to extradite eight important terrorist suspects 
apprehended in Spain. Spanish Prime Minister Jose Maria Aznar saved 
national face by announcing that ``if and when the United States 
requests . extradition'' his government ``will study the issue,'' but 
senior EU officials still maintain that judges across Europe will balk. 
Further, Egypt has now voiced its displeasure at the U.S. refusal even 
to provide the names of detained Eygptian citizens.
    What is really at issue is the content of the actual rules that 
will govern the proceedings before military commissions, rules now 
being written by the Justice Department and the Pentagon. These rules 
may well be more liberal than the initial Executive Order. White House 
Counsel Alberto Gonzales has already announced that habeas corpus 
challenges to the tribunals' jurisdiction will be available in federal 
court for ``anyone arrested, detained or tried in the United States,'' 
notwithstanding the provision in the order itself denying defendants 
access to any national, foreign, or international tribunal.
    Secretary Rumsfeld said yesterday that the Administration is 
engaging in a dialogue with noted scholars and experts on how to make 
these rules as palatable as possible. He could start by talking to the 
Senate Judiciary Committee and the State Department, both of which are 
likely to be more sensitive to domestic and international concerns. For 
its part, the Senate Judiciary Committee can use its current hearings 
to identify a number of concrete changes that would greatly enhance the 
acceptability of the Administration's plan, at least regarding the 
trial of suspects apprehended and tried outside the United States.
    The right to a free and fair trial is recognized by all major 
political, social, religious, and cultural systems. The Universal 
Declaration of Human Rights states that everyone ``is entitled in full 
equality to a fair and public hearing by an independent and impartial 
tribunal.'' Even in times of war, Common Article 3 of the Geneva 
Conventions requires that anyone accused of a crime be afforded ``all 
the judicial guarantees which are recognized as indispensable by 
civilized peoples.'' The International Covenant on Civil and Political 
Rights, the Inter-American Convention on Human Rights, the Cairo 
Declaration on Human Rights in Islam, the African Charter on Human and 
People's Rights and the European Human Rights Convention all contain 
similar guarantees of fair judicial process.
    What emerges from these numerous international instruments are five 
core principles of international due process: the presumption of 
innocence; the right to a speedy trial; the right to counsel of choice; 
the right to confront evidence and witnesses in a public forum; and the 
right to an appeal. What the Administration may not realize is that 
these standards are more flexible than the specific strictures of our 
own Constitution. They allow considerable latitude in tailoring a 
judicial process to meet the challenges of pursuing global criminals.
    Even tribunals created in extraordinary circumstances have complied 
with these five principles. Military commissions used in the Civil War 
explicitly provided for appellate review. The Nuremberg Tribunal 
allowed defendants to choose their counsel from a list of qualified 
attorneys. The Diplock Courts created by the UK in the 1970s to deal 
with terrorism in Northern Ireland embraced all five principles. The 
European Court of Human Rights upheld the right to a speedy trial by 
reversing the British Government when defendants were indefinitely 
detained. The ad hoc criminal tribunals for Rwanda and Yugoslavia have 
guaranteed the right to confront even the most sensitive evidence by 
redacting references to intelligence sources and methods and by 
providing the public with a transcript of proceedings when the 
courtroom must be closed to protect the anonymity of witnesses. And all 
these tribunals have started from a presumption of innocence.
    President Bush's Order requires relatively little modification and 
elaboration to meet the international standards applied by these 
tribunals. The following commitments would have to be made explicit.

         All detainees must be presumed innocent until proven 
        guilty. However, the-order need not specify the precise 
        standard of proof.
         All those arrested or detained shall be brought to 
        trial within a specific time period.
         All accused are entitled to qualified counsel of their 
        own choosing, either from a specified list or after approval by 
        a judge.
         Evidence will be made available to both prosecution 
        and defense after redaction to protect classified sources and 
        methods. Proceedings in which such evidence is presented will 
        be open to the public or published in full soon after the fact.
         All convicted defendants can appeal their convictions. 
        However, such appeal could be to a special appellate tribunal 
        established for this purpose. Appellate judges, who are more 
        removed from potentially classified evidence presented at 
        trial, could include civilians and even international jurists 
        in certain circumstances.

    Military commissions can go wrong. Special courts restricting due 
process have largely failed in Egypt and Israel. The State Department 
has officially criticized the use of military commissions to try 
civilians in Burma, China, Columbia, Egypt, Malaysia, Nigeria, Peru, 
Russia, and the Sudan. The problems cited in each of these cases were 
not the use of military commissions per se, but rather the failure to 
comply with the five core principles of free and fair trials.
    The costs of complying with standards of international due process 
are not high. The benefits are enormous, both in terms of encouraging 
cooperation from our coalition partners and upholding our own basic 
values. Working within the framework of the Military Order, the 
Administration should publicly commit itself to the five core precepts 
of basic justice.
    Anne-Marie Slaughter is professor of international law at Harvard 
Law School and President-elect of the American Society of International 
Law. William Burke-White is third year student at Harvard Law School.

                                

         Editorial in the Wall Street Journal, December 4, 2001

                        Terrorists On Trial--II
    Supreme Court Justice Antonin Scalia didn't break any rule of 
judicial decorum when he told the Associated Press recently that 
``Nobody wants to capture Osama bin Laden and have him tried by Judge 
Ito for two years.'' But his quip does help cut through the hysteria 
that has arisen about the issue of military tribunals.
    Justice Scalia was careful not to voice an opinion on tribunals, 
the constitutionality of which he may have to decide once President 
Bush puts the first captured terrorist on trial. But his comment grasps 
the essence of the White House argument that our regular criminal 
justice system isn't up to the job of trying terrorists. As Senate 
Democrats prepare to roast Attorney General Ashcroft this week, we 
thought you might like to know about the civilian system's recent and 
unhappy record in such cases.
    Three recent cases have pertained to the first attack on the World 
Trade Center and one followed the bombing of the U.S. embassies in 
Africa. The good news is that the trials resulted in convictions; the 
bad news is they were protracted, expensive and dangerous to the 
participants. Worse, we'll never know what the cost of those 
convictions was to intelligence sources and methods.
    This issue of secrecy looms largest, for both confidential and even 
nonclassified information. The first World Trade Center trial included 
lengthy testimony about the structure and stability of the Twin Towers; 
there's little doubt this data helped Mohamed Atta plan his horrific 
flights into those buildings.
    In the embassy-bombing trial, Government Exhibit #1677-T was al 
Qaeda's terror manual. This how-to handbook was chock-a-block with 
counter-surveillance measures, encryption methods, storing explosives 
and other tricks of the terrorist trade. It offered some business-
school-style case studies in what went wrong in failed assassinations, 
and provided a list of escape routes.
    By entering the manual into evidence, the U.S. was telling al Qaeda 
that it knew its operating procedures and inviting it to change course. 
This was bad enough during peacetime, but in the middle of a war 
against terrorism it's akin to disclosing troop movements. Military 
tribunals, which could close the proceedings when sensitive information 
is discussed, would make sure this mistake isn't repeated.
    Speedy justice is also not a hallmark of civilian courts. The first 
World Trade Center trial took six months in 1993-94. A second lasted 
four months in 1997. A third trial--that of Omar Abdel-Rahman, the 
blind sheik--took eight months in 1995. And the embassy-bombing trial 
last spring lasted three months, with sentencing scheduled to take 
place on September 12 in the federal courthouse a few blocks north of 
the World Trade Center.
    Which brings us to the fact that all of these trials were held 
under heavy security and at great risk to the participants. Federal 
courthouses are heavily trafficked public buildings in dense urban 
areas, and thus difficult to protect. Effective security requires more 
than installing metal detectors or closing off adjacent streets.
    A military base is the safest venue for terrorist trials, but even 
then security isn't a simple matter. It took a year to prepare Camp 
Zeist in the Netherlands for the trial of those accused of bringing 
down Pan Am Flight 103. The Indian Ocean island of Diego Garcia, which 
has the double virtue of being home to a British military base and 
located in Afghanistan's neighborhood, could make sense for the U.S. 
tribunals. Geraldo would be able to fly in and out easily.
    The usual rule in civilian terrorist trials is anonymity for the 
jurors. But it's hard to believe that jurors are going to consider that 
adequate protection after Sept. 11. Judges are even more at risk; two 
federal judges in New York remain under tight security to this day, 
long after the end of their terror trials.
    The larger point here is that military tribunals aren't some Big 
Brother evasion past the normal rules of justice. They are a common 
sense, and historically well established, way to cope with the unusual 
demands of a war against terrorism. As recently as 1996, the Clinton 
Administration rejected Sudan's offer to turn over Osama bin Laden 
because it didn't think it had enough evidence to convict him in a 
criminal court. A military tribunal would certainly have come in handy 
then. Terrorists who would kill thousands of American civilians aren't 
ordinary criminal suspects and shouldn't be treated as such.
    The Defense Department is working out rules and procedures for the 
tribunals, but we already know some reassuring details. The trials will 
be mostly open to the media, some civilian judges might well take part 
and suspects will have the right to counsel. They will not, thankfully, 
have the right to a two-year trial by Judge Ito.

                                

 Editorial in the Washington Post, Washington, D.C., Friday, November 
                                16, 2001

                     End-Running the Bill of Rights
    After The--attacks of Sept. 11, many predicted that the demands of 
domestic security would eventually clash with traditional American 
reverence for civil liberties. Few predicted that the clash would come 
so soon and so starkly, or that the government would come down so 
decisively on the anti-liberty side as would be permitted under 
President Bush's new executive order on military justice. The order 
allows the president to order a trial in a military court for any non-
citizen he designates, without a right of appeal to the courts or the 
protection of the Bill of Rights.
    We understand the temptation to jettison civilian justice and the 
shields against excessive government power that this country has 
nurtured for more than two centuries. The United States is, as Attorney 
General John Ashcroft said, at war, and with an implacable foe. There 
are potential terrorists, likely living in this country, who would do 
Americans great harm if they could--greater even than what their 
brethren accomplished at the World Trade Center, the Pentagon and the 
field in Pennsylvania. We can imagine cases in which the government 
might take custody of such a person, too dangerous to be released or 
deported, against whom the evidence came from sources too sensitive to 
reveal in open court, or was insufficient to win conviction in a normal 
court. We can also imagine cases in which fighters captured overseas 
might best be tried in military courts. But the potential damage is so 
great, to U.S. credibility abroad as well as U.S. liberty at home, that 
such courts should be viewed as an absolutely last resort, particularly 
in domestic cases.
    Instead, Mr. Bush has authorized military justice as an option for 
the government in a far wider array of cases than could ever be 
necessary. Any non-citizen whom the president deems to be a member of 
al Qaeda, or to be engaged in international terrorism of virtually any 
kind, or even to be harboring such people, can be detained indefinitely 
under his order and tried. The trials could take place using largely 
secret evidence. Depending solely on how the Defense Department further 
refines the rules, the military officers conducting the trials might 
insist on proof of guilt beyond a reasonable doubt, or might use some 
far lesser standard. The accused can be convicted without a unanimous 
verdict but with a two-thirds majority. Those found guilty would have 
no appeal to any court; and if found guilty, they could be executed. 
Such a process is only a hair's breadth from a policy of summary 
justice. The potential to imprison or execute many innocent people is 
large, the chances that such mistakes would become known much smaller. 
Mr. Bush is claiming for himself the authority to unilaterally exempt a 
class of people accused of particular crimes from the protections of 
the Constitution. In this as in other recent balancing acts between law 
enforcement and liberty--the roundup without accounting of more than 
1,000 people, the authorization of government eavesdropping on 
conversations between imprisoned clients and their lawyers--it seems to 
us the president is not being well advised.
    When Americans accused of terrorism are tried in secret courts by 
hooded judges in Peru or other nations, the U.S. government rightly 
objects. To authorize comparable trials in this country will erase any 
legitimacy of such objections. Worse, it will erode throughout the 
world the image of America as a place where certain freedoms cannot be 
compromised--freedoms that ultimately provide the most basic 
justification for this country to stake its claim to lead the world and 
wage the war on terrorism. And worse in turn than the blow to the U.S. 
image abroad will be the potentially irreversible injury at home if Mr. 
Bush proceeds, as his order would allow, to undermine the rule of law.

                                

Article by Ruth Wedgwood, Wall Street Journal, Monday, December 3, 2001

                    The Case for Military Tribunals
    U.S. Marines may have to burrow down an Afghan cave to smoke out 
the leadership of al Qaeda. It would be ludicrous to ask that they 
pause in the dark to pull an Afghan-language Miranda card from their 
kit bag. This is war, not a criminal case.
    The president's executive order, providing for the detention and 
possible trial of terrorists in military courts, recognizes this. But 
some critics continue to argue that trials are better held in a federal 
district court, or in an ad hoc international criminal tribunal. Others 
have worried that the initial jurisdictional order does not fully 
specify the rules of trial procedure and evidence that would await 
prisoners. Yet others are concerned that Congress was not asked for 
authorizing legislation. These criticisms, though made in good faith, 
reflect a misunderstanding of how the law of war is enforced, as well 
as a dangerous naivete about the threat we face.
    The detention of combatants is a traditional prerogative of war. We 
have all seen movies about captured soldiers in World War II. After 
surrender or capture, a soldier can be parked for the rest of the war, 
in humane conditions, to prevent him from returning to the fight. His 
detention does not depend on being charged with a crime. Though most al 
Qaeda members do not rise even to the level of POWs--they have trampled 
on the qualifying rules of wearing distinctive insignia and observing 
the laws of war--they can be detained by the same authority for the 
duration of the conflict.
    Military courts are the traditional venue for enforcing violations 
of the law of war. The Sept. 11 murder of 4,000 civilians was an act of 
war, as recognized by the U.N. Security Council in two resolutions 
endorsing America's right to use force in self-defense. Osama bin Laden 
and his airborne henchmen disregarded two fundamental principles of 
morality and law in war--never deliberately attack civilians, and never 
seek disproportionate damage to civilians in pursuit of another 
objective. The choice to carry out the attacks during the morning rush 
hour reveals this to be a war crime of historic magnitude.
    Why not try al Qaeda members in Article III federal courts, with a 
civilian judge and a jury? Federal judges have never been involved in 
the detention of POWs or unprivileged combatants. Only in 1996 did 
federal courts gain limited statutory jurisdiction to hear war crimes 
matters, and no federal court has ever heard such a case.
    Moreover, just consider the logistics. It is hard to imagine 
assigning three carloads of federal marshals, rotated every two weeks, 
to protect each juror for the rest of his life. An al Qaeda member 
trained in surveillance can easily follow jurors home, even when their 
names are kept anonymous. Perhaps it is only coincidence that the World 
Trade Center towers toppled the day before al Qaeda defendants were due 
to be sentenced for the earlier bombings of East Africa embassies--in a 
federal courthouse in lower Manhattan six blocks away. But certainly 
before Sept. 11 no one imagined the gargantuan appetite for violence 
and revenge that bin Laden has since exhibited. Endangering America's 
cities with a repeat performance is a foolish act.
    If there are a sizeable number of al Qaeda captures, the sheer 
volume will also be disabling. At a rate of (at most) 12 defendants per 
trial, trying 700 al Qaeda members would take upwards of 50 judges, 
sequestered in numerous courthouses around the country.
    In federal court, as well, there are severe limitations on what 
evidence can be heard by a jury. Hearsay statements of probative value, 
admissible in military commissions, European criminal courts and 
international courts, cannot be considered in a trial by jury. 
Historically, Anglo-American juries were thought incapable of weighing 
out-of-court statements, and the Supreme Court attached many of these 
jury rules to the Constitution. So bin Laden's telephone call to his 
mother, telling her that ``something big'' was imminent, could not be 
entered into evidence if the source of information was his mother's 
best friend. In a terrorist trial, there are few eyewitnesses willing 
to testify, because conspiracy cells are compartmentalized, and 
witnesses fear revenge.
    There is also the problem of publishing information to the world, 
and to al Qaeda, through an open trial record. As Churchill said, your 
enemy shouldn't know how you have penetrated his operations. The 1980 
Classified Information Procedures Act helped to handle classified 
secrets at trial, but doesn't permit closing the trial or the 
protection of equally sensitive unclassified operational information.
    An international tribunal is even less practical. The ad hoc 
criminal tribunals created for Yugoslavia and Rwanda by the U.N. 
Security Council have not enjoyed the confidence of Western powers in 
obtaining intelligence intercepts for use at trial. Americans could not 
expect to fill the majority of slots in an ad hoc tribunal, and a trial 
chamber of three to five judges might have no Americans at all. 
Moreover, the tribunal for Yugoslavia has operated at a snail's pace, 
trying only 31 defendants in eight years, at a cost of $400 million.
    It is even more fanciful to propose that a largely Muslim court 
should be delegated to try bin Laden and company. Arab and Muslim 
states will fear the reaction of their own local militants. And Israel 
might properly wonder why it could not also serve on such an 
international court, since bin Laden's fatwa called for the murder of 
Jews and Americans. No Arab state would participate, of course, if an 
Israeli judge served. This does not preclude offering into evidence, at 
a military tribunal, the works of international law by Muslim jurists 
that show that the standards of protecting innocents are universal.
    Congress will want to consult on the nature of the military 
tribunals established by President Bush. Congress's input will be 
useful to the administration in crafting rules of procedure and 
evidence, as well as in thinking about added safeguards for alleged 
terrorists discovered within the U.S. Civilian judges can serve on 
military tribunals (civilians served at Nuremberg), and few hearings 
may be closed, except for sensitive portions. Habeas corpus review 
remains available for aliens arrested in the U.S.
    But it is also plain that Congress long ago agreed to the 
president's power to convene military commissions (under U.S. Code, 
Title 10, Section 821). In addition, the president has inherent 
constitutional power as commander-in-chief to convene such tribunals, 
an argument acknowledged by Chief Justice Harlan Fiske Stone in a 1942 
opinion. (Stone, writing for a unanimous Supreme Court, declined to set 
aside the military trial and execution of German saboteurs who had 
entered the U.S. to destroy war plants.) The president is also 
authorized by statute to write rules of procedure and proof for 
military commissions, and to decide whether or not it is 
``practicable'' to adopt the ordinary rules of common law and evidence.
    The thought of printing stationery for the ``United States district 
court for the district of Afghanistan'' sounds rather absurd. And for 
good reason. This danger is too serious to be left to the civilian 
courts.
    Ms. Wedgwood, a former federal prosecutor, is a professor of 
international law at Yale and Johns Hopkins University.
    (See related letter: ``Letters to the Editor: In War, Tribunals 
Make Perfect Sense''--WSJ Dec. 10, 2001)
                            index references
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Opinion; Law Enforcement; Law Enforcement; Military Action; Military 
Action; Special News Events; Public Policy & Regulatory Issues; 
Politics; Wall Street Journal; Editorial Page; English language 
content; Domestic Politics; Political/General News; Crime; Terrorism; 
General News; Content Types; Risk News (GCRIM EDC NEDC LEN GNOME MLT 
GVIO NWS PBP PLT WSJ EDI ENGL GPOL GOAT CRM GTERR GEN NCAT GRISK)
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America; United States; United States; Central Asian Countries; Asian 
Countries; North American Countries (AFG AFGH FE FEO NME US USA CASIAZ 
ASIAZ NAMZ)

                                

       Article by Jodi Wilgoren, New York Times, December 4, 2001

                             The Interviews
           deadline is extended in questioning of foreigners
    Detroit, Dec. 3--Law enforcement officials here extended the 
deadline today for young Middle Eastern men to respond to letters sent 
last week requesting interviews about the Sept. 11 terrorist attacks, 
after only about 185 of the 550 people wanted for questioning called to 
schedule appointments.
    The extension, from Tuesday to next Monday, came as Attorney 
General John Ashcroft, appearing here in the nation's largest Arab-
American community, defended the Justice Department's interview plan 
and invited prominent local Arabs and Muslims to sit in on the 
meetings.
    Two people who attended a half doxen interviews today said the 
conversations were professional, non-threatening and surprisingly 
short. Noel Saleh, an immigration lawyer, and Imad Hamad, Midwest 
director of the American-Arab Anti-Discrimination Committee, said the 
young men, a handful of the 5,000 temporary visa holders wanted for 
questioning nationwide, answered ``yes'' or ``no'' as investigators 
marked notes on a four-page Justice Department questionnaire.
    ``They asked about Sept. 11, if they were aware of people who acted 
differently or if they were aware of people who were happy or were 
celebrating what happened on Sept. 11,'' Mr. Hamad said. ``They asked 
if they are aware of any terrorist group or if anybody is planning 
anything. They asked if they'd ever been part of an armed conflict in 
their own country, the form of a policeman.''
    At a news conference this morning, after a Sunday night meeting 
with five leaders of the local ArabAmerican community, Mr. Ashcroft 
angrily denied that his department was engaged in racial profiling and 
praised the leaders as ``part of the solution.''
    ``I find the American-Arab community to be a very helpful 
community,'' he said. ``The people who hijacked the planes on Sept. 11 
were not representative of the AmericanArab community.''
    Immigration lawyers and community leaders said they were pleased by 
Mr. Ashcroft's reassurances and by the tenor of the interviews so far, 
but still skeptical of the vast canvass and the continued detention of 
hundreds of people swept up in the investigation. The men that the 
Justice Department is seeking to interview range in age from 18 to 33 
and have come to the United States since Jan. i, 2000, on student, 
business or tourist visas from countries suspected of links to 
terrorism.
    ``Sometimes there are gaps between what people say and what they 
do,'' said Yahya Mossa Basha, president of the American Muslim Council, 
who attended the meeting with Mr. Ashcroft on Sunday night. ``Those 
gaps have to be covered in order for people to be satisfied.''
                ashcroft finds himself on the defensive.
    Mr. Saleh said Mr. Ashcroft's meeting with community leaders was an 
empty gesture. ``The F.B.I. met with Martin Luther King numerous times 
but that didn't stop them from violating his civil rights,'' he said.
    Osama Sibiani, editor of The Arab American News, a national weekly 
based in nearby Dearborn that published an editorial last week 
encouraging people to cooperate with the interviews, said he told Mr. 
Ashcroft that he resented any comparison of the treatment of Arab-
Americans today to that of Japanese- and German-Americans during World 
War II because ``the Arab world has not declared war on the United 
States.''
    It remains unclear what will happen to people here who do not 
respond to the letters, which law enforcement officials sent, rather 
than sending investigators out knocking on doors. Robert Cares, an 
assistant United States attorney who heads the Detroit office's 
antiterrorism task force , said today that he would not pursue a 
conversation with the one person who responded to the letter but 
declined to be interviewed. Mr. Cares said nine federal agencies and 50 
local police departments were involved in the interviews in eastern 
Michigan.
    After sitting in as an Internal Revenue Service agent and Michigan 
State Police officer talked to three students from Henry Ford Community 
College and Wayne State University, Mr. Saleh said the questions were 
not ``severe or adversarial'' but that his clients were still nervous 
during the half-hour talks. ``They all said, `Since we got the letter 
we haven't been able to concentrate on study,''' he said.
    Mr. Hamad, who attended the Sunday night meeting w3ih Mr. Ashcroft 
and today took him up on his offer to sit in on interviews, said the 
three men he watched being questioned a Jordanian student, a Lebanese 
student and a Lebanese engineer who has a green card--were asked to 
show their passports but not questioned about their visa status. The 
F.B.I. agent conducting the interviews, which lasted 10 to 15 minutes, 
asked if they had visited Afghanistan, whether they had been the 
subject of harassment because of their ethnicity and what they thought 
of airport security.
    ``It was very straightforward questions with straightforward 
answers and the agent did not even elaborate further,'' Mr. Hamad said. 
``He did not revisit the same question and try to get any answer beyond 
the `no' answer that was given.''
    In Ann Arbor, Mich., today, Police Chief Daniel Oates and federal 
law enforcement officials met with eight Muslim leaders to discuss 
plans for interviews with about 80 young men there; including students 
at the University of Michigan, whose officers have declined to 
participate in the project.

                                

    Article by Byron York on National Review Online, NR White House 
                    Correspondent, December 3, 2001

                        Dems Cave on Tribunals?
         a star witness makes the case far the military courts.
    While many in Congress and the press wait for Thursday's showdown 
between Senate Judiciary Committee chairman Patrick Leahy and Attorney 
General John Ashcroft over the Bush administration's antiterrorism 
measures, a key part of the Democrats' strategy will be previewed in 
another hearing, this one scheduled for Tuesday morning.
    The session will focus solely on the issue of using military 
tribunals to try foreign terrorist suspects. The commissions, 
authorized by President Bush in a November 13 military order, dominated 
discussion at last week's committee questioning of top Justice 
Department official Michael Chertoff.
    Tuesday's session will be chaired by New York senator Charles 
Schumer (it is one of four Judiciary Committee hearings this week, and 
Leahy apparently does not have time to chair them all). The witness 
list includes Democratic perennial Laurence Tribe, a Harvard Law School 
professor who is expected to criticize the president's order.
    But anyone expecting a full-scale attack on Bush's plan will likely 
be disappointed. Rather, it appears that Democrats have conceded much 
of the president's position and will only ask to be consulted more as 
the rules for tribunals are written.
    Much of the argument will focus on points made by Tribe in a recent 
article, ``Trial by Fury,'' in The New Republic magazine. In it, Tribe 
begins by arguing that the military tribunal order ``goes too far'' in 
infringing civil liberties. But in the end, Tribe makes a convincing 
case that the tribunals are not only constitutional but necessary.
    Tribe argues that Bush may have exceeded his authority by 
establishing tribunals without the approval of Congress. While 
lawmakers did pass a seemingly comprehensive use-of-force authorization 
giving the president wide discretion to conduct the war on terrorism, 
Tribe says the authorization lacks the ``ritualistic solemnity of a 
declaration of war'' and therefore ``does not justify the same domestic 
deprivations that a formal declaration of war might.'' He then writes 
that the president's tribunal order is so flawed that it could 
theoretically lead to absurd results - suggesting that Bush might order 
the execution of someone acquitted by a tribunal, or that Ashcroft 
might use a tribunal to try someone accused of assisting suicides in 
Oregon.
    ``But just because the order is flawed doesn't mean it can't be 
mended,'' Tribe continues. Normally, he says, one might look to the 
Supreme Court for assistance, but Tribe argues that the justices would 
be little more than a ``rubber stamp'' for Bush's action. Tribe cites 
the majority opinion in Bush v. Gore, as well as the Court's approval 
of tribunals in the past, as evidence that the justices would be 
insufficiently critical. Tribe also hints that the Court might be 
vulnerable to intimidation by the president; he writes that there is 
evidence that ``some nasty behind-the-scenes arm-twisting by the 
executive'' was behind the Court's unanimous approval of Franklin 
Roosevelt's decision to try eight Nazi spies by tribunal in 1942.
    With the Supreme Court on the sidelines, Tribe writes that Congress 
must take up the task of correcting the president's actions. Congress, 
Tribe argues, is the only body with the power to investigate the 
administration's detention of terrorist suspects and witnesses, as well 
as its ``racial profiling'' of Middle Eastern immigrants and ``the 
array of other apparent incursions on traditional liberties and 
privileges ...that Attorney General Ashcroft has instituted.''
    At that point, however, Tribe makes an abrupt about-face. 
Addressing the ``fundamental question of whether the core of the 
executive order, its gratuitous branches pruned, is consistent with the 
Constitution,'' he answers: ``I think it may well be.''
    ``In wartime,'' Tribe continues, ``'due process of law,' both 
linguistically and historically, permits trying unlawful combatants for 
violation of the laws of war, without a jury or many of the other 
safeguards of the Bill of Rights,'' provided the tribunals are 
impartial. In addition, Tribe concedes that there is nothing to suggest 
that civilian juries in wartime will be any more fair than military 
tribunals. He also admits an uneasiness about lawyers in civilian 
courts using procedural arguments to free suspects who ``belong to 
terrorist cells that slaughter innocent civilians.'' And lastly, Tribe 
worries that civilian trials would ``grant an extended pulpit to an 
accused bent on claiming martyrdom and capable of stirring others to 
further acts of international terror.''
    Even his criticism of tribunals doesn't really amount to all that 
much, Tribe concludes. ``This is not to suggest that those tribunals, 
at their core, offend any fundamental constitutional precept,'' he 
writes.
    Tribe's argument is likely to get a friendly hearing from temporary 
chairman Schumer. At last week's hearing, he said, ``I haven't made up 
my mind'' about tribunals. ``I think there is a need for secrecy,'' 
Schumer continued, ``I think those who say we should just have a 
regular trial, as if it was someone who held up a candy store - that 
doesn't make much sense.'' It might turn out that the showdown over 
tribunals will be considerably less than advertised.



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