[Congressional Record Volume 150, Number 31 (Thursday, March 11, 2004)]
[Senate]
[Pages S2701-S2705]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           DETENTION OF ENEMY COMBATANTS IN THE WAR ON TERROR

  Mr. WARNER. Mr. President, as elected representatives of the American 
people, Senators seek to ensure that the U.S. Government protects the 
American people from international terrorism. We seek also to ensure 
that the cherished liberties of the American people are preserved, and 
to keep the people as fully informed as possible, as we fight the war 
on terror.
  On February 24, 2004, the Counsel to the President of the United 
States, former Texas Supreme Court Judge Alberto R. Gonzales, addressed 
the Standing Committee on Law and National Security of the American Bar 
Association. Judge Gonzales discussed the legal basis for detention of 
enemy combatants in the war on terror, including U.S. citizens Yaser 
Hamdi and Jose Padilla. His address set forth details of the 
decisionmaking steps that

[[Page S2702]]

resulted in the detention of Messrs. Hamdi and Padilla as enemy 
combatants. The U.S. Supreme Court has accepted the cases of Messrs. 
Hamdi and Padilla for review during its current term.
  So that all my colleagues and the American public may be informed on 
this important matter, I ask unanimous consent that the address by 
Judge Gonzales be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

        Remarks by Alberto R. Gonzales, Counsel to the President


   AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON LAW AND NATIONAL 
                                SECURITY

       In 1862, President Abraham Lincoln composed a letter to 
     Eliza P. Gurney in which the President considered how God 
     could allow the horrors of the Civil War to occur. In his 
     correspondence, our 16th President wrote:
       ``We must believe He permits it [this war] for some purpose 
     of his own, mysterious and unknown to us; and though with our 
     limited understanding we may not be able to comprehend it, 
     yet we cannot but believe, that he who made the world still 
     governs it.''
       Lincoln's faith would not permit him to doubt that the 
     specter of American sons killing American sons was 
     providential. Many Americans surely had similar thoughts 
     about God's plan as we watched American Airlines Flight 11, 
     and then United Airlines Flight 175, slam into the Twin 
     Towers of the World Trade Center on the morning of September 
     11th. On that day, America was subjected to a brutal and 
     treacherous attack by an enemy that had declared war on our 
     society.
       Whether consciously or not, we all realized on September 
     11th that some things would never be the same. We all 
     realized that the country now faced an unprecedented threat 
     that, in ways yet to be known, would alter the way we live 
     our lives and would alter the way the government goes about 
     protecting American lives. Over time, some of the ways 
     September 11th has changed our lives have become routine--
     such as the longer security screenings we all now build into 
     plans when we are going to the airport. In part because these 
     changes have become routine, and particularly because there 
     have been, thankfully, no subsequent attacks on American 
     soil, some may be tempted to become complacent, and may no 
     longer be concerned about future acts of terrorism.
       But we should make no mistake about it: Despite our 
     successes in capturing many al Qaeda leaders, in destroying 
     their base of operations in Afghanistan, and in preventing 
     domestic attacks, the threat posed by al Qaeda is still very 
     real. Al Qaeda is a fluid, adaptable, and resourceful enemy 
     that continues actively to plan attacks both against American 
     interests and our allies abroad and against targets within 
     the United States. As you all know from the period of the 
     heightened threat level that we all experienced around the 
     holidays, we continue to get specific intelligence about 
     planned al Qaeda attacks. We know from their previous 
     practices that members of al Qaeda are very patient, willing 
     to spend years to plan, train for, and then execute an 
     attack. It would be foolish for anyone now to declare that, 
     given two-plus years free from attacks within the U.S., the 
     domestic phase of the conflict with al Qaeda is somehow 
     ``over.'' I can assure you that no one in the Government is 
     complacent about the threat posed by al Qaeda.
       In response to this ongoing threat, President Bush, like 
     other Presidents during times of war, has taken strong, 
     sometimes difficult, action to protect American lives and 
     preserve the long-term survival of this country.
       A few people--probably some in this audience--are 
     uncomfortable with the balance struck by this Administration 
     between protecting our country and preserving our freedoms. 
     They are uneasy with the idea of applying the law of war to 
     the enemy combatants waging war against this country, 
     including enemy combatants who are American citizens. Citing 
     the necessity of protecting our reputation in the 
     international community, our critics insist that these 
     combatants should receive the benefit of the rules and 
     procedures of our criminal justice system, those tried and 
     true methods that we use to deal with criminals such as car 
     thieves and drug dealers. They demand that our judges--even 
     though untrained in executing war plans--have a 
     substantive role in the war decisions of the Commander-in-
     Chief.
       In spite of the massive and horrific loss of life on 
     September 11th, the skeptics assert it is obvious that 
     America is not at war, much less engaged in warfare on 
     American soil. In their view, it is obvious that every 
     American citizen--even a citizen who, as a member of a 
     terrorist group, wages war against our sons and daughters--is 
     entitled to be] dealt with solely according to the rules and 
     presumptions of the criminal justice system, including the 
     right to counsel, the right to remain silent, and the general 
     right to judicial supervision of their detention. It is 
     obvious, they say, that foreign fighters, captured overseas 
     and detained by our military outside the United States, have 
     a right to challenge, in our civilian courts, the scope and 
     terms of their detention.
       Respectively, these propositions are not at all obvious as 
     a matter of law; to the contrary, they lack any valid 
     foundation in domestic or international law. The 
     Administration's detractors fundamentally misunderstand the 
     nature of the threat this country is facing. America 
     confronts a lethal but unfamiliar enemy, sometimes hidden 
     here in our neighborhoods, waiting to hurt innocent people. 
     Our enemies are not constrained by civilian authority or by 
     any government. Nor are they inhibited by ordinary human 
     concerns for their own safety or lives. Some are fanatics who 
     believe their greatest power can lie precisely in their 
     disregard for human life and their willingness to resort to 
     indiscriminate violence, as we witness nearly every day in 
     bombings and shootings around the world. They do not love 
     liberty, they do not respect law, they do not cherish life.
       Certain propositions are, in my view, clear. First, the 
     brutal attacks of September 11th--which killed nearly three 
     thousand people from more than ninety countries--were not 
     only crimes but acts of war. Since at least that day, the 
     United States has been at war with al Qaeda. While al Qaeda 
     may not be the traditional armed force of a single nation 
     state, al Qaeda is clearly a foreign enemy force. It has 
     central direction, training, and financing and has members in 
     dozens of countries around the world who are committed to 
     taking up arms against us. It has political goals in mind. Al 
     Qaeda has attacked not only one of our largest cities, 
     killing thousands of civilians, but also has attacked our 
     embassies, our warships, and our government buildings. While 
     different in some respects from traditional conflicts with 
     nation states, our conflict with al Qaeda is clearly a war.
       As a practical matter, this state of war is not in 
     dispute--not by the United Nations Security Council, which 
     passed a resolution in response to the September 11th attacks 
     recognizing the right of states to act in self-defense; not 
     by members of NATO, or the Rio or ANZUS treaties, all of 
     which unanimously invoked their treaty clauses regarding 
     collective defense from armed attack; and not by the United 
     States Congress, which acted to support the President's use 
     of all necessary and appropriate military force against al 
     Qaeda.
       Second, the President is determined to win this war and has 
     directed that all instruments of national power be directed 
     to this new type of enemy. Because the threat is not only 
     against our military abroad, but also against civilians here, 
     the Department of Justice and the Department of Homeland 
     Security share responsibility with the Department of Defense 
     for the successful prosecution of this war. To suggest that 
     an al Qaeda member must be tried in a civilian court because 
     he happens to be an American citizen--or to suggest that 
     hundreds of individuals captured in battle in Afghanistan 
     should be extradited, given lawyers, and tried in civilian 
     courts--is to apply the wrong legal paradigm. The law 
     applicable in this context is the law of war--those 
     conventions and customs that govern armed conflicts.
       Under these rules, captured enemy combatants, whether 
     soldiers or saboteurs, may be detained for the duration of 
     hostilities. They need not be ``guilty'' of anything; they 
     are detained simply by virtue of their status as enemy 
     combatants in war. This detention is not an act of punishment 
     but one of security and military necessity. It serves the 
     important purpose of preventing enemy combatants from 
     continuing their attacks. Thus, the terminology that many in 
     the press use to describe the situation of these combatants 
     is routinely filled with misplaced concepts. To state 
     repeatedly that detainees are being ``held without charge'' 
     mistakenly assumes that charges are somehow necessary or 
     appropriate. But nothing in the law of war has ever required 
     a country to charge enemy combatants with crimes, provide 
     them access to counsel, or allow them to challenge their 
     detention in court--and states in prior wars have generally 
     not done so.
       It is understandable, perhaps, that some people, especially 
     lawyers, should want to afford the many due process 
     protections that we have grown accustomed to in our criminal 
     justice system to the individuals captured in our conflict 
     with al Qaeda. It has been many years, fortunately, since the 
     United States has been in a conflict that spans the globe, 
     where enemy combatants have been captured attempting to 
     attack our homeland. But the fact that we have not had 
     occasion to apply the well-established laws of war does not 
     mean that they should be discarded. The United States must 
     use every tool and weapon--including the advantages presented 
     by the laws of war--to win the war against al Qaeda.
       Within this framework, today I would like to discuss what 
     some may consider the most controversial of the President's 
     actions, namely the detention of American citizens as enemy 
     combatants, wherever those persons may have been seized, and 
     more specifically the determination that a person--
     particularly an American citizen--captured in the United 
     State is an enemy combatant. As you know, we have detained 
     two American citizens as enemy combatants.
       The first, Yaser Hamdi, is a Saudi national who was a part 
     of Taliban military unit that surrended to Northern Alliance 
     forces in a battle near Konduz, Afghanistan in late 2001. He 
     was armed with an AK-47 assault rifle when he surrendered. He 
     has admitted that he went to Afghanistan to train with and 
     fight for the Taliban. Following his capture, a U.S. military 
     screening team confirmed

[[Page S2703]]

     that Hamdi indeed met the criteria for enemy combatants over 
     whom the U.S. forces were taking control. Afterwards, 
     military authorities learned of records indicating that 
     Hamdi, although a Saudi national, had been born in Louisiana. 
     He was transferred to a naval brig in the United States where 
     he remains detained.
       The second, Jose Padilla, also an American citizen, was 
     among those who sought to bring terror to our soil. Padilla 
     has served time in the U.S. for murder and for a handgun 
     charge. In 1998, following his release from prison, he moved 
     to Egypt, where he took the name Abdullah Al Muhajir. In 2001 
     and 2002, Al Muhajir, or Padilla, met with al Qaeda officials 
     and senior operatives, and proposed to conduct terrorist 
     operations within the United States--includinga plan to 
     detonate a dirty bomb--as well as the detonation of explosive 
     devices in hotel rooms and gas stations. Padilla received 
     training from al Qaeda operatives, and was directed by al 
     Qaeda members to return to the United States to explore and 
     advance plans for further attacks against the United States. 
     Multiple intelligence source separately confirmed Padilla's 
     involvement in planning terrorist attacks by al Qaeda against 
     United States citizens and interests. Like Hamdi, Padilla 
     has been detained in a naval brig in the United States.
       The President's legal authority to detain American citizens 
     as enemy combatants is, in my view, clear. The practice of 
     capturing and detaining those engaged in hostilities is as 
     old as war itself, and is ingrained in this Nation's military 
     history. The detention of enemy combatants serves two vital 
     objectives in the global war on terror: preventing killers 
     from rejoining the enemy and continuing to fight, and 
     enabling the collection of intelligence about the enemy. The 
     Supreme Court's 1942 decision in Ex parte Quirin acknowledged 
     that the President's war powers include the authority to 
     capture and detain enemy combatants at least for the duration 
     of a conflict, and authority that was well-settled by the 
     time of that decision. More to the point with respect to 
     Hamdi and Padilla, the Supreme Court has made clear that this 
     power extends to enemy combatants who are United States 
     citizens. As the Court observed in Quirin, in which one of 
     the detained Nazi saboteurs was a United States citizen: 
     ``citizenship in the United States of an enemy belligerent 
     does not relieve him from the consequences of a belligerency 
     which is unlawful.''
       The course of action that we have taken with respect to Mr. 
     Hamdi and Mr. Padilla--and the arguments that we have made in 
     defending those actions in the courts--draw upon these well-
     established precedents. The Executive's determination that an 
     individual is an enemy combatant is a quintessentially 
     military judgment--indeed, deciding who is the enemy is in 
     many senses the fundamental, threshold decision that the 
     Commander-in-Chief makes, the decision from which all other 
     military decisions flow. Accordingly, the traditional 
     deference owed by courts to military judgments is at its 
     broadest with respect to the President's determination that 
     an individual is an enemy combatant. While courts may review 
     (by habeas corpus) the Executive's determination that an 
     American citizen (whether captured abroad or on U.S. soil) is 
     an enemy combatant, that review must be deferential. 
     Specifically, in view of the great deference owed to the 
     President's enemy combatant determinations and the serious 
     separation-of-powers concerns that would attend any searching 
     judicial inquiry into the factual underpinnings of the 
     President's judgment, a factual review of the President's 
     determination can extend no further than ensuring that it has 
     evidentiary support. That framework focuses exclusively on 
     the factual support presented by the Executive and entails 
     confirming the existence of some evidence supporting its 
     determination that the individual is an enemy combatant.
       The Government's record in the courts on the scope of the 
     President's authority, as you probably know, has been mixed. 
     The Fourth Circuit in Hamdi agreed that the President may 
     detain enemy combatants, including American citizens, and 
     further agreed that judicial review should be highly 
     deferential. The Court reasoned that the designation of Hamdi 
     as an enemy combatant bears the closest imaginable connection 
     to the President's constitutional responsibility during the 
     actual conduct of hostilities, and that while judicial review 
     does not disappear during wartime, the review of battlefield 
     capture in overseas conflicts is a highly deferential one.
       Applying this deference to the facts of the case, the 
     Fourth Circuit concluded that--despite his status as an 
     American citizen currently detained on American soil--Hamdi 
     is not entitled to challenge the facts presented by the 
     United States. The Court held that where as here, a 
     petitioner has been designated as an enemy combatant and it 
     is undisputed that he was captured in a zone of activity 
     combat operations abroad, further judicial inquiry is 
     unwarranted when the government has responded to the petition 
     by setting forth factual assertions which would establish 
     a legally valid basis for the petitioner's detention.
       The Second Circuit reached a different conclusion with 
     respect to Jose Padilla. There, a divided panel held that the 
     President does not have inherent authority under the 
     Constitution to detain as an enemy combatant an American 
     citizen seized within this country away from a zone of 
     combat. The Court also held that the President could detain 
     an American citizen only with the express authorization of 
     Congress, and that the Congressional resolution to use force 
     against members of al Qaeda did not give such authorization.
       You will not be surprised to learn that we found the Fourth 
     Circuit decision to be brilliant, and the panel's reasoning 
     incisive and unimpeachable. We found the decision by the 
     Second Circuit panel on the other hand, to be less brilliant, 
     less supportable by the facts, and contrary to legal 
     precedent.
       I am constrained by my time this morning from elaborating 
     further on our legal arguments in both cases. In any event, 
     they are a matter of public record and have been fully set 
     out in our briefs. The Supreme Court will hear arguments in 
     both the Padilla and Hamdi cases this spring. We are hopeful 
     that the Court will agree with the government's position in 
     each case.
       What I would like to turn to is something that has not been 
     made a matter of public record. Until today, the Government 
     has been reticent about discussing in any detail the 
     decision-making steps that may result in an American citizen 
     being designated as an enemy combatant or how an American 
     detainee held in the United States may be provided access to 
     counsel.
       As a result, while we have set forth our legal authorities 
     clearly in legal briefs, in the debate over the fairness and 
     prudence of the Government's actions in the war on terror, 
     the voice of the Government has remained essentially unheard. 
     Our silence has been largely for reasons of national 
     security. The deliberations that underpin any decision that a 
     person already within the United States is, in reality, an 
     enemy combatant, invariably include extraordinarily sensitive 
     intelligence information that we are loathe to reveal for 
     fear that it may jeopardize the future capture of enemy 
     combatants and future prevention of terrorist attacks. We 
     realize that our relative silence on this issue has come at a 
     cost. Many people have characterized--mischaracterized, in 
     our view--our actions in the war on terrorism as inconsistent 
     with the rule of law. Indeed, because of our silence, many 
     critics have assumed the worst. They have assumed that there 
     is little or no analysis--legal or otherwise--behind the 
     decision to detain a particular person as an enemy combatant. 
     To them, the decision making process is a black box that 
     raises the specter of arbitrary action.
       While some of these criticisms are understandable, they are 
     wrong. With two years of experience, we now believe that our 
     concerns for national security can be accommodated with a 
     greater public disclosure of the steps we have taken behind 
     the public actions you already know about. And so today, we 
     will begin to take a more active role in the debate about the 
     fairness of our acts of detention of U.S. citizen enemy 
     combatants. This discussion builds on Secretary Rumsfeld's 
     speech eleven days ago in Miami, where he revealed the review 
     mechanisms that had long been in place with respect to 
     detentions of non-U.S. citizen enemy combatants being held at 
     Guantanamo Bay, Cuba. Today I am going to explain the 
     decision-making that led to our enemy combatant 
     determinations with respect to U.S. citizens.
       Yaser Hamdi, in my view, presents a relatively easy case. 
     Hamdi was seized in a combat zone in Afghanistan. He was 
     armed with an AK-47 when his Taliban unit surrendered to 
     Northern Alliance forces. The Northern Alliance subsequently 
     made him available for an interview by U.S. military 
     personnel. A U.S. military screening team confirmed that 
     Hamdi met the criteria for enemy combatants over whom the 
     United States was taking control, and Hamdi was transferred 
     to U.S. control. In such a situation in a foreign zone of 
     combat, that determination was quite properly made by 
     military personnel on the ground. These facts and other 
     details relating to the circumstances of Hamdi's case were 
     memorialized in a declaration, the so-called Mobbs 
     declaration, which was made available for review by the 
     courts in connection with Hamdi's habeas petition.
       As for enemy combatants who are American citizens and are 
     captured here in the U.S., as a matter of prudence and policy 
     the decision-making steps we have employed have been far more 
     elaborate. They have included a thoughtful, deliberate and 
     thorough analysis of the relevant facts and law at many 
     levels of the Executive branch. In the one case in which the 
     President has exercised his authority as Commander-in-Chief 
     to detain a U.S. citizen in the United States as an enemy 
     combatant, we have employed a thorough--indeed, painstaking--
     mechanism to ensure multiple layers of scrutiny before even 
     proposing any action to the President.
       What follows is a general description of the mechanism that 
     was employed before the President exercised this presidential 
     power. I should caution, however, that there is no rigid 
     process for making such determinations--and certainly no 
     particular mechanism required by law. Rather, these are the 
     steps that we have taken in our discretion to ensure a 
     thoroughly vetted and reasoned exercise of presidential 
     power.
       In any case where it appears that a U.S. citizen captured 
     within the United States may be an al Qaeda operative and 
     thus may qualify as an enemy combatant, information on the 
     individual is developed and numerous options are considered 
     by the various relevant agencies (the Department of Defense, 
     CIA and DOJ), including the potential for a

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     criminal prosecution, detention as a material witness, and 
     detention as an enemy combatant. Options often are narrowed 
     by the type of information available, and the best course of 
     action in a given case may be influenced by numerous factors 
     including the assessment of the individual's threat potential 
     and value as a possible intelligence source. This explains 
     why persons captured in the U.S. may be processed differently 
     depending on the totality of the circumstances the particular 
     case presents.
       For example, we could have abundant information indicating 
     that the individual has committed a crime--such as material 
     support for terrorism--but the information may come solely 
     from an extremely sensitive and valuable intelligence source. 
     To use that information in a criminal prosecution would mean 
     compromising that intelligence source and potentially putting 
     more American lives at risk. Those are the sort of 
     considerations that have to be weighed in deciding how we 
     proceed against a particular individual in any given case.
       When it appears that criminal prosecution and detention as 
     a material witness are, on balance, less-than-ideal options 
     as long-term solutions to the situation, we may initiate some 
     type of informal process to present to the appropriate 
     decision makers the question whether an individual might 
     qualify for designation as an enemy combatant. But even this 
     work is not actually commenced unless the Office of Legal 
     Counsel at the Department of Justice has tentatively advised, 
     based on oral briefings, that the individual meets the legal 
     standard for enemy combatant status. That standard was 
     articulated by the Supreme Court in Quirin, where the Court 
     made clear that, at a minimum, ``citizens who associate 
     themselves with the military arm of the enemy government, 
     and with its aid, guidance, and direction enter this 
     country bent on hostile acts are enemy belligerents within 
     the meaning of . . . the law of war,'' and thus may be 
     detained. The important factor, therefore, is that the 
     person has become a member or associated himself with 
     hostile enemy forces, thereby attaining the status of 
     enemy combatant.
       It is worth noting, I think, that on more than one occasion 
     OLC has advised that the facts relating to a certain 
     individual did not support an enemy combatant determination, 
     or were so close to the line as to present a very doubtful 
     case. In those cases the United States did not proceed 
     further in the process of determining whether to designate 
     the persons as enemy combatants, but rather pursued 
     different, legally available options for addressing the 
     threat. In a very real sense, the Executive branch in these 
     cases declined to take a particular action against suspected 
     terrorists because it concluded that the action was not 
     clearly legally supportable.
       Once initial assessments indicate that an enemy combatant 
     designation may be the best legally available way to deal 
     with a particular U.S. citizen, we have proceeded to take the 
     following steps to assist the President in making a final 
     decision.
       First, the Director of Central Intelligence makes a written 
     assessment of all available CIA intelligence information 
     concerning the individual and transmits a recommendation and 
     request to DoD recommending that the person be taken into 
     custody as an enemy combatant.
       The Secretary of Defense then makes his own independent 
     evaluation, based upon the information provided by the CIA 
     and other intelligence information developed within DoD. That 
     evaluation is embodied in a written assessment concerning 
     enemy combatant status.
       The Secretary's assessment is provided to the Attorney 
     General with a request for the Attorney General's opinion 
     concerning: (1) whether the assessment comports with 
     applicable law; (2) whether the individual may lawfully be 
     taken into custody by the Department of Defense; and (3) 
     whether the Attorney General recommends as a matter of policy 
     that that course be pursued. This ensures that DOJ can 
     formally provide input on the law-enforcement equities 
     related to the individual. DoD's request to the Attorney 
     General includes the intelligence information from both the 
     CIA and DoD.
       In addition to the materials forwarded by the DoD, the 
     Attorney General relies on two documents in responding to 
     DoD's request: the first is a memorandum from the Criminal 
     Division setting out all the information available to it from 
     the FBI and other sources concerning the individual; and the 
     second is a formal legal opinion from OLC analyzing whether 
     the individual meets the legal standard to be held as an 
     enemy combatant--the Quirin standard I just discussed.
       Following his review, the Attorney General forwards a 
     letter with his legal advice and recommendations back to DoD, 
     along with the Criminal Division fact memo and the OLC 
     opinion.
       The Secretary of Defense then transmits a package of 
     information to the President, recommending that the President 
     designate the individual as an enemy combatant. The package 
     of information recommending the enemy combatant designation 
     includes six items: (i) the written assessment and 
     recommendations of the CIA; (ii) the recommendation and 
     preliminary assessment by the Secretary of Defense; (iii) the 
     DoD intelligence information; (iv) the Attorney General's 
     letter to DoD, including his legal opinion and 
     recommendation; (v) the Criminal Division's fact memo; and 
     (vi) the OLC opinion.
       Lawyers at the White House review the DoD package and 
     recommendations, and the Counsel to the President forwards it 
     to the President along with his written recommendations to 
     the President.
       Finally, the President reviews the DoD package and is 
     briefed by his Counsel. If the President concludes that the 
     person is an enemy combatant, the President signs an order to 
     that effect directing the Secretary of Defense to take him 
     into his control. In the case of Padilla, the President 
     concluded that Padilla ``is, and at the time he entered the 
     United States in May 2002 was, an enemy combatant.'' The 
     President also determined that he ``possesses intelligence, 
     including intelligence about personnel and activities of al 
     Qaeda that, if communicated to the U.S., would aid U.S. 
     efforts to prevent attacks by al Qaeda.''
       As you can see executive branch decision making is not 
     haphazard, but elaborate and careful. And although these 
     specific steps are not required by law, we have followed them 
     in our discretion, in order to make sure that--in this 
     context as in all others--the President's Commander-in-Chief 
     authority is exercised in a reasoned and deliberate manner.
       In part because of the reluctance that I spoke about 
     earlier to articulate our position and procedures, there 
     appears to be some confusion about whether the Government is 
     willing to permit American enemy combatants access to our 
     courts to challenge their detention. The reality, of course, 
     is that they do have such access: the detentions of Hamdi and 
     Padilla have been challenged in the courts and indeed are 
     slated for review by the Supreme Court this Spring. And, of 
     course, from the outset, those challenges on Hamdi's and 
     Padilla's behalf have been pursued by qualified counsel.
       But can there be meaningful access to our courts and a 
     meaningful right to file a habeas challenge without direct 
     access to counsel? To the average American, this may appear 
     to be a legitimate question. But those who question the 
     government's position on access to counsel operate under a 
     fundamental misunderstanding of the legal nature of the 
     detention of virtually all of these terrorists.
       It is the position of this Administration that, in the case 
     of citizens who take up arms against America, any interest 
     those individuals might have in obtaining the assistance of 
     counsel for the purpose of preparing a habeas petition must 
     give way to the national security needs of this country to 
     gather intelligence from captured enemy combatants. Although 
     the right to counsel is a fundamental part of our criminal 
     justice system, it is undeniably foreign to the law of war. 
     Imagine the burden on our ability to wage war if those trying 
     to kill our soldiers and civilians were given the opportunity 
     to ``lawyer up'' when they are captured. Respectfully, those 
     who urge the extension of the right to counsel to these 
     combatants, for the purpose of filing a habeas petition, 
     confuse the context of war with that of the criminal justice 
     system.
       When we are at war, debriefing of enemy combatants is a 
     vital source of intelligence. But the stream of intelligence 
     would quickly dry up if the enemy combatant were allowed 
     contact with outsiders during the course of an ongoing 
     debriefing. The result would be the failure to uncover 
     information that could prevent attacks on our military and on 
     American citizens. This is an intolerable cost, and we do not 
     believe it is one required by the Constitution. For these 
     reasons, we have urged that interrogations of captured enemy 
     combatants should be allowed to proceed, as they historically 
     have, uninterrupted by access to counsel.
       We have also recognized, however, that in every case we 
     need not maintain the most restrictive conditions on 
     detention that the law of war permits. Constraints imposed on 
     a particular U.S. citizen held as an enemy combatant should 
     be and are constantly re-evaluated as a matter of policy, to 
     make sure that the terms and conditions of confinement are 
     necessary to meet the needs of national security.
       The Department of Defense employs a deliberate and thorough 
     procedure, as a matter of policy, when making this decision 
     about access to counsel. The stated policy of the 
     Department--which it detailed publicly last December--is to 
     permit any enemy combatant who is a United States citizen and 
     who is being detained by DoD in the United States access to 
     counsel: (1) after DoD has determined that such access will 
     not compromise the national security of the United States; 
     and (2) after DoD has completed intelligence collection from 
     that enemy combatant or after DoD has determined that such 
     access will not interfere with intelligence collection from 
     that enemy combatant.
       The policy is initiated when DoD officials in charge of 
     interrogations make an initial determination that 
     intelligence collection is completed or that access to 
     counsel would not interfere with intelligence collection. 
     This determination is made after coordination with the 
     Department of Justice, including the FBI, and the CIA. DoD 
     officials prepare a memo for the Deputy Secretary of Defense 
     seeking authorization for access to counsel. That draft is 
     coordinated within DoD and with officials at the White House, 
     DOJ, and CIA.
       Once this coordination is complete, and a consensus 
     reached, the memo is forwarded to the Deputy Secretary of 
     Defense for his consideration. The Deputy Secretary then 
     makes a final decision whether the two prongs of the DoD 
     access to counsel policy are satisfied.

[[Page S2705]]

       As you can see, the decision to provide counsel is made 
     after careful consideration of national security 
     implications. These decisions are guided by thorough legal 
     analysis at various levels of our government.
       That is precisely the course we have followed both with 
     Yaser Hamdi and Jose Padilla. When officials at DoD 
     determined that intelligence collection from Hamdi was 
     complete, they announced last December that he would be 
     allowed access to a lawyer, subject to appropriate security 
     restrictions. Hamdi has now met with his lawyer. Earlier this 
     month DoD officials concluded that national security would 
     not be harmed by permitting Padilla to have access to 
     counsel, and he too will be given access to a lawyer. As 
     these decisions show, we have an interest in restricting 
     access to counsel to the extent necessary to advance an 
     important intelligence-gathering interest. When that interest 
     no longer exists, we have no further need to restrict access 
     to counsel and will allow U.S. citizens that access to assist 
     in their challenge to their detention in the courts by means 
     of habeas corpus. We believe strongly that access to counsel 
     needs to occur at an appropriate time. What we will not do is 
     put American lives at risk and jeopardize intelligence-
     gathering by recognizing a non-existent right for enemy 
     combatants to consult with lawyers.
       I am pleased to have had the opportunity this morning to 
     provide you with some more details about the decisionmaking 
     process that we have followed in dealing with enemy 
     combatants who are U.S. citizens. The way in which this 
     Administration has made its decisions, in my judgment, 
     vividly illustrates the President's commitment to wage war 
     on terror aggressively and relentlessly while fully 
     respecting the bounds of the law.
       Recent press accounts and editorials have suggested that 
     the Bush Administration--fearing losses in the courts--has 
     revised its approach to dealing with terrorists. As I hope my 
     remarks this morning have made clear, that is not the case. 
     The extensive procedures and safeguards that I have described 
     today are ones that we have followed from the outset in 
     determining whether certain individuals qualify as enemy 
     combatants. All along, the Administration's actions have been 
     uniformly grounded in historical practice and legal precedent 
     and have been based on careful and continuous consideration 
     of the facts and circumstances of each case. What is new is 
     our willingness to share more information about our 
     procedures, as Secretary Rumsfeld did two weeks ago in Miami 
     and as I am doing today. Our flexibility in this regard has 
     been constrained by the demands of national security. At this 
     point in time, however, we have decided that there are ways 
     that we can share some of this information, and that doing 
     so--as I have today--is both consistent with the demands of 
     national security and in furtherance of our interest in 
     showing the American people that their government is one that 
     respects the law even as it fights aggressively an enemy 
     dedicated to our destruction.
       Because ours is a free society, the actions taken by the 
     Administration have been (and will continue to be) challenged 
     in the courts. These are important issues, and courts exist 
     to resolve such disputes. Our independent judiciary will help 
     determine how longstanding practice applies to the first 
     conflict of the 21st Century. It is possible that the courts 
     may disagree with a particular decision or policy; indeed, 
     the Second Circuit has already done so in Padilla (although 
     the Supreme Court will now be reviewing that case and 
     providing the final word on the issues presented). I am 
     confident in the legality of the measures the Administration 
     has employed in seeking to defend Americans from our enemies 
     in the war on terror--but in our system the courts will have 
     their say. What cannot be denied, however, is that in 
     protecting the American people from our terrorist enemies, 
     the Administration has carefully examined the Constitution 
     and laws of the United States, as applied in historically 
     analogous situations.
       In closing, when I walk into the Oval Office to brief the 
     President, I am always reminded of the awesome responsibility 
     that the President has--and the corresponding duty on all of 
     us who serve him. But the burden of protecting this country 
     and of securing the rights embodied in our Constitution is 
     not ours alone.
       Yes, those of us in government have a direct hand in 
     executing power under our Constitution. But American 
     citizens--including members of the bar--also play an 
     important role in protecting and defending the Constitution's 
     precious precepts. The vigilance and work of American 
     citizens in this endeavor arguably is no less patriotic than 
     the actions of our soldiers on the battlefield--both are in 
     defense of our freedoms . . . and both should be respected.
       Thank you very much.

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