I wasn't at this hearing -- the COPA Supreme Court arguments were taking place -- but my colleague Ben was, and we collaborated on this article. The below transcript comes from the Justice Department. The Hill editorial on Attorney General Ashcroft's refusal to testify: http://www.hillnews.com/112801/editorial.shtm Witness list for hearing, titled "Preserving Our Freedoms While Defending Against Terrorism": http://judiciary.senate.gov/hr112801f.htm -Declan --- http://www.wired.com/news/conflict/0,2100,48711,00.html DOJ's Already Monitoring Modems By Declan McCullagh and Ben Polen 4:42 p.m. Nov. 28, 2001 PST WASHINGTON -- The Department of Justice already is using its new anti-terrorism powers to monitor cable modem users without obtaining a judge's permission first. A top Bush administration official lauded the controversial USA Patriot Act at a Senate hearing on Wednesday, saying that the new abilities have let police obtain information in investigations that was previously unavailable. "We would not have been able to do (this) under prior law without a specific court order," said Michael Chertoff, assistant attorney general in the Justice Department's criminal division. [...] --- TRANSCRIPT OF MICHAEL CHERTOFF'S TESTIMONY PANEL I OF A HEARING OF THE SENATE JUDICIARY COMMITTEE SUBJECT: PRESERVING FREEDOMS WHILE DEFENDING AGAINST TERRORISM CHAIRED BY: SENATOR PATRICK LEAHY (D-VT) SEN. LEAHY: Good morning. This is one of a series of hearings this committee is holding on the Department of Justice response to the September 11th attacks, on implementation of our anti-terrorism legislation, 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, also our state and local officers, for their dedicated law enforcement efforts. We've seen it across this country, and of course we've 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 obligations, 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 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're all committed to bringing to justice those involved in the September 11 attacks and to prevent future acts of terrorism. As we've shown 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 attack terrorism. We passed a bill in record time and with an extraordinary level of cooperation between Democrats and Republicans, the House and the Senate, 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's a marked departure from existing practices. It raises a wide range of legal and constitutional questions and international implications. (NOTE: Senator Leahy reads the previous paragraph again.) 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's a marked departure from existing practices. It 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 interest in the long term? As we examine the wisdom of the military order as written, we should consider the task, 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 described 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 the type of rough justice those regimes can 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. And 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 the 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? A question we must ask ourselves. And apart form these practical issues, questions remain about the executive branch 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 separations of powers that undergirds our constitutional systems. It may undercut the legality of any military tribunal proceeding. And 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 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 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 long time at hard labor. The lesson is that secret trials and a 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. It would send a terrible message to the world that when confronted with a serious challenge, we lack confidence in the very institutions we're 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. So 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. If we're 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, and 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 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 11th will test both our ideals and our resolve to defend them. And 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. SEN. HATCH: 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'm 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. Kitchens charged that, quote, "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," end quote. 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 most Americans -- 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, quote, "civil liberties is not only about protecting us from our government, it is also about protecting our lives from terrorism," unquote. 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 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 11th, 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 well a tough job in a very difficult time. And 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 4th and 6th 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 4th 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 are pursuant to material witness complaints under long-standing 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 long-standing 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 or the Washington Post, or any other newspaper, 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, quote, "unconstitutional," unquote. 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, quote, "Since our nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war," unquote. That's in Madsen versus 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 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, 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, 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 of the constitutional powers at its disposal to protect Americans under these situations. But given what happened on September 11th, 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 even from more harm. I think these are -- this is a legitimate hearing. It's an important hearing. It's legitimate to ask tough questions. And these are important questions. And it's 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's more than enough information here to justify the positions they've 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's the right thing to do. I think you've 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. SEN. LEAHY: Thank you. Mr. Chertoff, two days ago, we received a request that you wanted to testify, and I'm happy to concede to your request, with the understanding, of course, that the attorney general be here next week. I want to wish you a happy birthday on behalf of the committee. I'm sure this is the thing that you've looked forward to the most -- (laughter) -- as a way to spend your birthday. And so consider it our gift to you. (Laughter.) MR. CHERTOFF: Thank you, Mr. Chairman. SEN. LEAHY: Please go ahead. MR. CHERTOFF: 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've done in recent times. But then again, we are not in recent times. We face an extraordinary threat to our national security and the 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 and 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 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, 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, quote, "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, quote, "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 planned their terror 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 leave (sic) an outwardly normal life, all the while waiting to launch a terrorist attack. I'll give you an example from the 1998 embassy bombing in Nairobi, Kenya. Mohammed Odeh, who was convicted early this year for participating in that bombing, spent five years under cover 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's 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 name of persons -- the names of persons being held on material witness warrants, because those warrants are issued under seal, as relating 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 monitoring 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 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 preexisting 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 misuse of this information, which I will be happy to discuss. Finally, I'd 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 -- (Sound of ringing telephone.) SEN. LEAHY: Excuse me. Somebody has -- 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 commissions would operate. But certain protections are already built in to 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 any 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 for me. SEN. LEAHY: A couple of housekeeping things before we begin. Mr. Chertoff, obviously, I 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're speaking for the administration, you should have that opportunity. But we will have to keep to -- because a number of senators have other -- I'm told 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. I would also, as we have asked the attorney general a number of questions in letters, I hope that we'll have those answers before he testifies next week. But also that all members as they have follow up questions for Mr. Chertoff, they get them to him by the close of business today so he can have it -- 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, 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 26, when the president signed the new law, I think I talked to the attorney general sometimes two or three times a day about the tools needed by our law enforcement and intelligence agencies to prevent terrorist act and how are we 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 shared 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, on the contrary, at the attorney general's request, the Congress expanded the reach of several criminal provisions so authorities in this country are clearly authorized to exercise extraterritorial jurisdiction and bring 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 -- SEN. 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's important to bear in mind -- SEN. LEAHY: Did you hear discussions about it prior to our discussions here in the committee? Both our formal and informal discussions with you as we put together the antiterrorism -- MR. CHERTOFF: I would assume -- it's probably fair to assume that some people were discussing these matters at various points in time while were undergoing the process of working out the legislation. SEN. 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 U.S.A. Patriot Act? MR. CHERTOFF: I think, Mr. Chairman, the reason for that is as follows. We're talking about two totally different functions. We came before Congress, and I think rightly so, and with gratitude for Congress's 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. SEN. LEAHY: But, Mr. Chertoff, you're -- with all due respect, you're not answering my question. The administration, as you've 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's right or who's wrong -- which legal experts are right, which are wrong on that -- you're 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're giving you all this extra authority anyway. At the time when you were asking us for all these things but apparently not telling us what you were thinking about military commissions, would it not have made some wisdom to come here and said, "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. SEN. LEAHY: So it's those guys' fault, not yours. MR. CHERTOFF: I don't think that's what I'm saying, Mr. Chairman. I think what I'm saying -- these are separate and distinct functions and that 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 to try to bring the president's power as commander-in-chief into the realm of his power as chief of -- executor of the domestic criminal laws. SEN. LEAHY: But, Mr. Chertoff, don't you feel that most people see a big difference from -- I mean, if you capture -- if a number of al Qaeda members or Taliban or others are captured, as have been, by both U.S. forces and those we've 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's not the situation. We all understand that. We all understand that on the ground and the battlefields, there is one -- 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 we talk about bringing them back here and having these trials, then you raise an entirely different question. For example, I mean, were you surprised that 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 any of these suspects if they're going to be tried before a military commission. They'd 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've had that issue, for example, with respect to the death penalty, and it's 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 gives the president the flexibility to use all of his constitutional options when he's faced with the issue of a terrorist. If we're 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'll try suspects in third party countries in domestic Article III courts. So none of the -- 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." SEN. LEAHY: Well, my time is up. Senator Hatch? SEN. ORRIN HATCH (R-UT): Well, thank you, Mr. Chairman. Mr. Chairman, I'm a little bit surprised at your surprise that -- regarding the president's issuance of the military tribunal order, because you asked a very pertinent question during our -- 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, quote, "Some have suggested that those responsible for the attacks be treated as war criminals and tried by military tribunals," unquote. And 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 -- 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 little -- 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'd 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 XVIII 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've used it more efficiently to obtain certain information via subpoena from Internet service providers. We've obtained court orders directed to out-of-district Internet service providers for logging information, which has -- again has provided us with enhanced efficiency in terms of pursuing this investigation. We've used the nationwide search warrant provision to obtain relevant information. We've 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. SEN. 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 -- that's this: All individuals being detained in connection with this investigation are alleged to have violated either the immigration laws of the United States or 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. SEN. 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 and very unfair, and have almost been hysterical. But the questions are important, and your answers are even more important. MR. CHERTOFF: And again, Senator, that's 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're 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's 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're 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 judge makes a determination whether to keep them detained or not. And then it's 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 that. And I hope that by putting this in perspective, I can dispel some of the mystery that apparently has arisen up in the press about what is actually going on. SEN. HATCH: Well, thank you. My time is up. SEN. LEAHY: Thank you. Also from a -- just a housekeeping way, we're going to follow the early-bird rule, going from side to side on the -- on this side, the order of arrival: Senators Kennedy, Feingold, Durbin and Feinstein. And Senator Hatch, on your side, Senators Specter, Sessions, Kyl, McConnell and DeWine, in that order. Senator Kennedy. SEN. TED KENNEDY (D-MA): Thank you very much. And thank you very much for being here, responding to these questions. I think at the start of these oversight hearings, we are very mindful of -- all of us are -- of the challenge that we're facing with terrorism. There's no monopoly of concern in trying to be effective in dealing with the problems of terrorism. And many of us have -- believe and have commented about the effectiveness of the president in galvanizing not only a coalition, but looking at a multidimensional approach in trying to deal with the terrorists. But we need, I think, 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 I think we want to try and sort of work with you and the administration to try and do that. Not that all power is here, but at least these are matters that we have considerable interest in and worked on. I think it's 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 Dave McCullough as 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 the World War I. And we've just had -- gone through in the 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, say we're facing this terror and we're taking steps, and then we've looked back in terms of American history about what this is account. And then we say, we should have taken some time and really thought these steps through. And now we have seen, as we -- in the more recent times, where under our chairman and Senator Hatch, we did the antiterrorism bill which was worked out in a bipartisan way. And we have had the airport security after a period of time. Included in with the antiterrorism was money laundering, which is important, and changes in the intelligence worked out in sort of a bipartisan way, which the American people really had a sense that they're participating in. And we're making, I think, important progress in bioterrorism and also in trying to deal with national security on the immigration. And we're working that out with the Congress. We want to work with you. It's in that framework that I think many of these questions that come and that have to be raised. Now, on the issues of the military courts, I'm a member of the Armed Services Committee. I checked right after this and they have -- they gave us no indication. We're going to hear in the Armed Services, so I don't want to put words in your mouth, but they have indicated that they stated unequivocally, Defense Department didn't request the authority. They didn't even appear to have been consulted. Now that was my impression. Secretary Rumsfeld will have a chance to answer. Maybe you'd want to make a comment in just a minute on this. The concerns that many of us have on these items about the military tribunals -- we have seen, and many of us bipartisans have been critical of these military tribunals. We have, most particularly, when it's involved Americans in Peru, where we have -- the State Department, Republicans and Democrats -- where we have found an American being tried, talked about the failure of the military courts in Peru, intentionally, for not meeting internationally accepted standards of openness, fairness, and due process. We've 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 Sudan do not provide procedural safeguards. We've criticized Burma, China, Colombia, Malaysia, Nigeria, Russia, Turkey on similar grounds. Yet now we're calling for the use of military tribunals. The concern is, aren't we doing exactly what we've criticized other nations for doing? That would be one question. Let me mention just three items, the second with regard to the monitoring of the attorney-client communications. We have a process that's already available for those that are being imprisoned, that is being utilized by the Justice Department in taking on the tough issues, for example, in the Mafia and drug kingpins. And we haven't had testimony that that hasn't been effective. And we have a process and procedure, and you've outlined a completely new kind of way of dealing with it. And we're asking ourselves: Well, why don't you use the one that's 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're 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 is enormously important. And the final point I just want to mention deals with the questioning of the Middle Eastern detainees and the massive questions whether it's racial profiling, not racial profiling. We have seen where our profiling technique failed us abysmally with regard to the airlines. We're profiling the wrong people, and that's -- I won't take the time to do it. And now we have the criticism of the former leaders in the FBI that have been dealt and -- have had solid records of achievement and accomplishment in dealing with the problems of terrorism -- men and women of distinguished careers and tough on these issues, who -- and to make the comments that they think that this not only guts the values of our society, but also is extremely ineffective. Could you -- MR. CHERTOFF: Let me try, Senator. SEN. KENNEDY: Thank you. MR. CHERTOFF: And I think I've taken -- SEN. KENNEDY: I know I've given you a lot, but -- MR. CHERTOFF: Yeah, I think I've taken notes, and I'll 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's possible to have a fair one and it's possible to have an unfair one. It's not how you characterize it, it's 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 that the president has laid down. So I don't think that we need to be concerned that we're doing something here that we're criticizing others for doing merely because we're 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's 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 monitoring 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're 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've 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've entered, the kind of visa they've come in on. And we've 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're 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've 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 don't know where the people who were interviewed -- you know, 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've also decided to use additional techniques, and one of the things we've done is we've imposed upon ourself 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, you know, manna to drop from heaven that's 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's what we're doing. We're using the old techniques, but we're using new techniques, too. And we're not foreclosing things that have worked, but we're, again, creating the broadest range of options in being effective in fighting terrorism. SEN. KENNEDY: Time is up. Thank you. SEN. LEAHY: Thank you. I would also note -- I'll put it in the record -- because Senator Hatch had mentioned that -- my question to the attorney general on military commissions. Actually, in the hearing record I asked specifically and directly whether the president was considering this option. And the attorney general answered it would be inappropriate and premature, basically, to answer that. I'll put that in the record. And, of course, everybody can draw whatever conclusion they want. Senator Specter. SEN. ARLEN SPECTER (R-PA): Thank you. There is no doubt that the atrocious, barbaric conduct of the terrorists on September 11th require a 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 dollars, 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's the president's authority to follow the regular rules of evidence, unless it is impracticable to do so. And that's 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's necessary to be aggressive and hard-nosed. I agree with you completely about that. On this dais, you have quite a number of former prosecutors who have been charged with or perhaps (complimented?) by being aggressive and hard-nosed. Where you have the executive order providing the skeletal outline which authorizes conviction by a two-thirds vote, a quorum, in military court-martial, if you have a sentence of 10 years or more, it requires a three-quarters vote. If you have the death penalty, that requires a unanimous verdict. And I do believe that the kind of conduct we're calling for here calls for the death penalty. There is no provision in the executive order for judicial review. The traditional lines of going into federal court have been eliminated, with only review provided by the president and by the secretary of Defense. And the rules of evidence have been abrogated, so that evidence may be admitted if it's 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 and 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 a 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 regulations shall provide as to the, quote, "qualifications of (attorneys?)." I'd be interested to see where in the executive order there is right to counsel and what you consider to be the area of need, because if you can show it, I'm going to back you up all the way. I'd 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 earlier noted, in the context that the statutory delegation of the Congress requires the customary rules of law and evidence as are used in the district court unless there's a showing that it's impracticable. And that's what I'd like to hear you describe. MR. CHERTOFF: I'd be happy to, Senator. I hope I will respond to all the issues you've raised. And, of course, if I miss something and you remind me, I will address it. First of all, let me say that there's 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 -- SEN. 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, I think 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 2 of the Constitution. Interestingly, Congress itself recognized this pre-existing source of power when it passed Title X, USC Section A-21, 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 addressed that provision in the Madsen case, 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 pre-existing practice under the laws of war. So I think that Congress itself, when it passed what is now codified in Section A-21, recognized this inherent power of the commander-in-chief, as it's been recognized not only in international law but in our own practice literally since the days of George Washington, who authorized the 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 -- or 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 the Congress has prescribed and what their own practices have been, of what the history has been with respect to the rules. SEN. 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. SEN. SPECTER: So the answer is no. MR. CHERTOFF: At this point, the answer is the Department of Defense is -- SEN. SPECTER: It seems to me the Department of Justice ought to be involved. Yours is the department which has the traditional long- standing 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 and 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 unity. 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're going to do. So this is merely a point of departure. This merely starts the process. And I think, in so doing, it's consistent with the practice that Franklin Roosevelt used when he triggered the similar power in the mid-1940s in the Queren (sp) 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 underway. It is not concluded, at least as far as I understand it. And I think all of these matters, I'm confident, will be considered by the people who are putting these rules together. SEN. LEAHY: Does that mean you're going to come back and consult with us before anything is implemented? MR. CHERTOFF: Well, I'm hesitant to speak for the Department of Defense. I think, you know, they have the responsibility to carry forward with this. And I think for me to speculate about how they're going to do it or who they're going to consult really takes me out of my area of jurisdiction. SEN. LEAHY: The senator from Pennsylvania raises a valid point that you are -- that 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's 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. SEN. SPECTER: Mr. Chertoff, I would hope you wouldn't wait for an invitation. MR. CHERTOFF: I think we are capable of making our voice heard when necessary. SEN. SPECTER: Well, this committee didn't 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've had a lot of experience as a tough, hard-nosed prosecutor. We know your background. We also know your record for protecting constitutional rights. SEN. LEAHY: You don't have to mail us. I've had a little difficulty with my mail these days. (Laughter.) MR. CHERTOFF: We can fax and e-mail as well. SEN. LEAHY: Yes. In fact, I'm 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. SEN. FEINGOLD: Thank you very much, Mr. Chairman. Thank you very much for scheduling this series of hearings. It's obviously an extremely important function of the committee to engage in oversight of the Department of Justice, and it's 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. I appreciate your 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. And 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 and the effectiveness and even the constitutionality of several of the steps that the administration is carrying out with regard to this investigation. One thing that's clear so far today is that there is a bipartisan feeling that consultation with Congress on some of the more controversial matters has been woefully inadequate, and 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 and more discussion and more cooperation with Congress. And I also hope that these sessions will help the American people -- help us educate the American people and ourselves 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'd 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 don't know 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 don't have any idea who they are? Thus far the Justice Department has refused to provide most of the information I've 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, as I understand it -- I was told this morning of 104 people have now been released who were 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're being represented by counsel. So I'm pleased that you released this information. It's long overdue. But it doesn't seem consistent with the other statements that the attorney general has made. We still don't know who was 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're also aware of a lawyer in New York who states it took over a month to locate her client who had been picked up and sent to New York for questioning. And so it's 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 and friends and 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's my understanding that the identities of people who are in deportation proceedings are regularly made public. So what I'd 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.) 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'd like to know precisely the authority for this claim. Second, I'd 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's 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 accounts? And finally, you have said that the questioning of 5,000 Arab and Muslim men is not an intrusive process. 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'd be happy to answer those questions. Let me try to take them in turn. With respect to the issue of a disclosure of the names of the detainees, I think to be clear, and I don't remember the exact statement -- I was present when the attorney general made his statement to the press -- but I need to be clear -- I don't 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 don't 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 deal with the issue of what we called Megan's Law in my own state, which is people who have been convicted of sex offenses, there's 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 don't 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's an important point that's 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's nothing that stops them from saying, "Hey, I'm 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's required by -- 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're 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're very sophisticated about our legal system. They actually have a manual with lessons. And the lessons include saying, you know, 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're, 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 are -- I think are pretty straightforward. There are 548 people that are in detention on immigration charges. There 55 people who are in detention on federal criminal charges. Now, there's 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's a difference is because 55 reflect those situations where we've 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's why there's a difference between the 104 and the 55. Finally, there's a number of people that -- 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's 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 -- SEN. FEINGOLD: What's the breakdown, though, within that, of the different categories? MR. CHERTOFF: Well, the problem I have is this: I can't give you the number relating to material witnesses on grand jury because I am forbidden by law. I don't know the number of people being held in state and local custody because, frankly, we don't track that. And so without those two numbers, I cannot do the mathematics necessary to subtract from the 1,100. SEN. 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: You know, I would hesitate, Senator, to speculate about what the proportions are. I'm 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 is 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 then 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, you know, a 15 or 20 minute detention constitutes a detention under the Fourth Amendment. There are people who were stopped and maybe questioned for an hour or two, they may have been let go, and that was originally folded into that number. I think it -- it turns out at this point that's no longer a useful number, and I think we've 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'd 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 that 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 a coordination, that we are not profiling, that we are not questioning the loyalty of all the communities that make up America, that we understand that 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're going to continue to do that. SEN. FEINGOLD: Mr. Chairman, I would 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 that it may make the terrorist handbook about our system works obsolete. And -- MR. CHERTOFF: I hope so. SEN. FEINGOLD: I am -- I am -- well, but that concerns me. That concerns -- and I say that obviously with a concern that if we're going to change our system in all these different ways without adequate consultation, 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 a whole new set of rules. And I do have serious concerns about the way this is being done, but I look forward to the continuing process of trying to elicit the information and work with you on this. MR. CHERTOFF: Thank you, Senator. SEN. LEAHY: In fact, I would agree that the handbook is being -- if the handbook is being changed, it should be at our initiative and not at the terrorists' initiative. The -- again, for housekeeping -- the next senator in the order of arriving is Senator Sessions of Alabama. I will also note for members and for the witness, when Senator Sessions finishes his questioning, the witness finishes the answers, we will take a five-minute break so that Mr. Chertoff can stretch his legs and everybody else can. But, Senator Sessions, please go ahead, sir. SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman. And I think it's appropriate that the Department of Justice come before this committee and explain what you're doing and why you're doing it, and what legal basis you believe you have for the actions that you've taken. There has been, as Senator Hatch noted, a bit of hysteria, I think, in some of the criticisms of the department -- a real suggestion that things are going on that are not going on, suggestion that laws are being violated that I don't 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 war time 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're consistent with past practice when we have faced situations of comparable emergency. SEN. SESSIONS: I think that's an important thing for us. If somebody believes that we are violating the law, let's say specifically what law is being violated, and how it is that it's being violated. With regard to the military tribunals, that is a function of the president's war power, is that correct? MR. CHERTOFF: That's correct. SEN. SESSIONS: So it's really not a Department of Justice, it's a military act primarily? MR. CHERTOFF: That is correct, Senator. SEN. 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's 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 he, I noted, denominated a military order with regard to the trial by military tribunals. And on page four, subsection five, it says that it provides for modes of proof, issuance of process, qualifications of attorneys, which at a minimum should provide for, paragraph five, conduct of the prosecution by one or more attorneys designated by the secretary of defense, and conduct of a defense by attorneys for the individuals 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. SEN. SESSIONS: With regard to the attorney-client communication, and I was a federal prosecutor myself for 15 years, I'm 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've been a long time federal prosecutor. Do you -- isn't that 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's certainly done all the time, unfortunately. SEN. SESSIONS: Hypothetically, if you didn't 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, isn't that correct? MR. CHERTOFF: That's correct, Senator. And I have pointed out that it's 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. SEN. 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 the kind of teaching tool for terrorism. He says -- 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're in prison in order to further the goals of the terrorist organization. And woe unto us if we don't learn the lessons from what they're teaching. SEN. SESSIONS: Well, now you've said that you've identified out of a -- what is it? How many thousand people in prison? MR. CHERTOFF: One hundred and fifty-eight thousand, approximately, I think. SEN. SESSIONS: And 16 individuals that might be subject to this kind of supervision and monitoring, is that correct? MR. CHERTOFF: That's correct. And I should make it clear that of the 16, 12 are terrorists, and four are in -- are under these special administrative measures for espionage. SEN. 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. SEN. 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 the people of the United States without -- when we have, I think, a legitimate basis for monitoring that. So, I think you should do that. And I hope -- it should not be abused, and I'm glad to see that you have so few of the 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 have, 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 American 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 didn't make it clear that 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. SEN. 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 -- (laughter) -- in this regard. We'll take a five-minute recess, and then we'll go to Senator Durbin and Senator Kyl. (Recess.) SEN. LEAHY: (Sounds gavel.) I thank everybody. Mr. Chertoff, your birthday celebration just never stops. (Laughter.) The one -- and I appreciate the one musician among us in not leading a resounding chorus of "Happy Birthday." Senator Durbin -- just so everybody knows -- Senator Durbin, then Senator Kyl, Senator Feinstein, Senator McConnell -- another Democrat comes back there, then Senator DeWine, Senator Grassley. So, Senator Durbin, please go ahead. SEN. DURBIN: Thank you, Mr. Chairman. Mr. Chertoff, thank you again for being here. I think that 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 U.S.A. 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 for Senator Feingold, whom I respect very much for his own views on this subject, felt the same way. But it was a struggle. It wasn't easy. And I think that's why you perhaps heard some frustration and some 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 open 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 anti-terrorism 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 anti-terrorism bill defines terrorism, goes through and catalogues the federal laws that will be characterized as terrorism, an exhaustive list. And yet when we look at the president's order, it's 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's not defined. And it's 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 of 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 the now 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, a very well versed prosecutor on the subject. And he talked to me about his experience -- successful experience -- in 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 those, 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 of 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 anti-terrorism 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 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 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. Al-Bader Al-Hazmi -- I hope I have not mispronounced his name, who was arrested and detained after purchasing airline tickets. I read this 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 is taking 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's 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 erect under the circumstances. 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 they are enemy belligerents who have engaged in or supported hostilities against the United States through unlawful means, such as &7 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. SEN. DURBIN: Can I interrupt you to just ask this question? MR. CHERTOFF: Yes. SEN. DURBIN: 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 don't know whether the 1993 World Trade Center would have done so, because I don't know whether one could have reasonably 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 now as we sit here we are certainly in a state of armed conflict. And I don't 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 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's 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'm 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's 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 Virginia. Let me deal with the issue of international cooperation. I read the newspaper articles. I don't think there's 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's 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 forgo 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 don't 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 can't 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 don't 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. SEN. DURBIN: Thank you. Thank you, Mr. Chairman. SEN. LEAHY: Thank you. Senator Kyl. SEN. 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 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 are intelligence officers or 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 don't question his operational plans. We don't 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 in 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 of 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's 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 had -- and he said there is certain grand jury information he can't provide, and there's some things he doesn't know because it's 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 haven't 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'm 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 that 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 aren't aware of, unless they serve on the Intelligence Committee or have had special briefings about threats that have been invoked against citizens. And that's 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, some of us are not; but we shouldn't 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 a death penalty. It's been enormously helpful in -- 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 don't 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 formal congressional declaration of war for the president to have the authority that you've 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 (that) 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 in 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're in a state of armed conflict. In this instance, this is not a close call. We've 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's an isolated instance or whether those who are within our country who are terrorists believe they're at war, let me again quote from the manual here. This is the fourth lesson where they define military bases for terrorists, for al Qaeda. And the definition of a military base to the terrorist 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 themselves at war with us. They perceive their apartments as military bases. They call us the enemy. Under these circumstances, we haven't sought war but it's been thrust upon us, and it's for us to finish it. SEN. KYL: I thank you. Thank you, Mr. Chairman. SEN. LEAHY: Mr. Chertoff, I just want to make sure I understand. That terrorist manual you speak about is the one that was discovered in 1998, three years ago -- MR. CHERTOFF: That's correct. SEN. LEAHY: -- in the American embassy bombing 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 as a matter of public knowledge, a matter of knowledge to the Justice Department for years, it's something that has been looked at to successfully stop a number of 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's why I'm concerned. You had this for three years. We've all seen it, everybody in this committee. It's been in the newspapers well before September 11th. Every quote you made from it is accurate, but it's all been in the papers. It's all been public. Our concern is, having known all that, having known that before September 11th when your department was charged with helping with our security, having been known at times when, without going into classified matters, but when we have stopped terrorist acts over the last several years, that's why we're 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 can't. And I certainly don't 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 we've recently discovered and things we've had in hand for a long time, in reflecting on what we can do to protect Americans within the Constitution. SEN. 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. SEN. FEINSTEIN: Thanks very much, Mr. Chairman. Mr. Chertoff, I'd 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 interest to have him tried in this country under our normal procedures. I think people understand that and I think they're 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. And 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'd 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's 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 it was the case in the past, (actually?) the 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, and 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 don't 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 proceed perhaps more quickly than we anticipated. That may yet change. I think it's 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. And 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 why there's 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 hadn't made it clear earlier, we should not look at the fact that the Department of Defense is involved in this as 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 as 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. SEN. FEINSTEIN: If I understand you, then, you're 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 don't want to say 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. You needed to get the order out in order to start this process. SEN. FEINSTEIN: All right, because let's 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's 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've committed domestic crimes, in the ordinary way that people under Article 3 are. In order to be fully 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's a fairly high standard, I would think, and it doesn't apply to people who are in custody for garden-variety criminal offenses. In terms of asking how many people who are currently in custody who could conceivably be eligible for this order, I think I'm limited because I don't think I'm 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've identified that we have in custody that is someone that would be considered an active terrorist who's violated both domestic terrorism laws and the laws of war. So I don't 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. SEN. FEINSTEIN: Is it fair -- 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 don't feel that I can, at this point in time, make a statement as to the status of anybody in terms of whether they have -- 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. SEN. FEINSTEIN: Thank you. Thanks, Mr. Chairman. SEN. LEAHY: Perhaps the time to do this would be after the attorney general's testimony, but if there are issues that should be addressed solely in a closed session, if the senator from California wants one, I'm sure that the senator from Utah and I would request it under the normal procedures this committee does. Senator McConnell. SEN. MCCONNELL: Thank you, Mr. Chairman. This has been a very interesting hearing. I want to congratulate Mr. Chertoff on an excellent presentation. We've been talking about what kind of due- process rights we're going to provide to a universe of people who I believe, am I not correct, are 100 percent non-citizens? MR. CHERTOFF: That's correct. SEN. MCCONNELL: So this whole discussion is about a universe of people who are not citizens of the United States, and I think it's important to remember that. Let's, 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. SEN. 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're 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 who were tried after the '93 World Trade Center bombing. Is that not correct? MR. CHERTOFF: Well, Senator, I mean, I'm not an expert on 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 wouldn't want to, though, suggest that it's an inferior form of justice. It's a different form of justice. SEN. 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, than -- MR. CHERTOFF: There are protections, for example, for handling classified evidence, I think, that are somewhat different than -- SEN. MCCONNELL: Well, let me try again. Would it be correct to assume that it's 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 don't get a jury trial. MR. CHERTOFF: Well, again -- and I don't want to venture into talking about the Uniform Code, because I really don't know very much about it -- my understanding is, in some circumstances, you do get a jury. SEN. MCCONNELL: Let's assume that you don't get a jury trial in the military. Just assume that for the sake of discussion. MR. CHERTOFF: That would be a different -- yeah. SEN. MCCONNELL: 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's true, then it would be the case that a terrorist would have -- SEN. MCCONNELL: Which is a totally -- MR. CHERTOFF: -- an additional -- SEN. MCCONNELL: -- let me suggest is a totally perverse potential result of what we're 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's no doubt that one thing that this order operates to do is to remove the assurance that a terrorist might have that there's 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're home-free and get a higher measure of protection than they would get if they're caught in the field. SEN. MCCONNELL: Which leads me to my next question. In effect, we'd have the potential of a repeat of the O.J. Simpson trial, complete with grandstanding by defense lawyers, a trial of Osama bin Laden or his henchmen, with the potential to be set free because -- let's just take a hypothetical; let's assume that the case was about an anthrax attack; that there wasn't a pristine, perfectly-established chain of custody for anthrax. You could have these people being set free. In fact, what I'd like you to do is 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 the things you can think of that could go wrong that would compromise sources, methods, that allow us to conduct the war on terrorism, hopefully in an effective way. MR. CHERTOFF: Well, let me begin, Senator, by saying this. I don't want to be suggesting that I have any lack of faith in the ability of our domestic criminal courts to try terrorist cases. I mean, 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 now both as to the scope of the challenge we face and as to the nature of the challenge we face. And there are certainly considerations that an 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'd pose a danger to the populace. It is the fact that in past cases involving terrorists tried in this country that judges have had to be under guard. And some of that requirement for security -- SEN. MCCONNELL: And what about the jurors? MR. CHERTOFF: Jurors as well. SEN. MCCONNELL: What about the threat to jurors? MR. CHERTOFF: And that has persisted for a period of time, even after the trials are over. It may not be fair -- SEN. MCCONNELL: What about the reporters covering the trial? MR. CHERTOFF: Well, I probably oughtn't to venture there with reporters. SEN. 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 considered those factors. It is the case that up till now we've 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 can't sacrifice confidentiality. So -- and there may be technical problems in some instances, given the far-flung nature of the investigation and the fact that we're accumulating evidence on the ground, presumably in Afghanistan, where the need to have somewhat more streamlined procedures would commend itself to the president. But I also want to be careful not to suggest that our domestic courts are incapable of doing -- SEN. MCCONNELL: I'm not suggesting that you're suggesting that. But it is a practical result of this, would it not be the case, that the jurors who were called to serve could possibly look forward to having to have security for the rest of their lives? MR. CHERTOFF: I don't know that we've had a case where the jurors have had to have security for the rest of their lives. SEN. MCCONNELL: But they might desire it -- MR. CHERTOFF: But I think that -- SEN. MCCONNELL: -- 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's certainly an important consideration. SEN. MCCONNELL: Obviously some of these things were on the mind of the president or he wouldn't have suggested that we wanted to have this option in the first place. MR. CHERTOFF: I think that's quite true. SEN. MCCONNELL: Thank you, Mr. Chertoff. SEN. LEAHY: Thank you. Senator Kohl. SEN. KOHL: Thank you, Mr. Chairman. Mr. Chertoff, since the events of September 11, 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're 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 present a clearer picture of what this is 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 a 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 hold true when we 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, quote, "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?" -- unquote. 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 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, open 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 haven't seen those yet. They're 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 don't 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 need to 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 Defense Department who are in the process of writing these 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 2 that is faithful to the Constitution and faithful to our values. And absence evidence to the contrary, I see no reason to -- for anybody in any part of the world to assume we are going to depart from that. SEN. 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 is 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 of this country, whether they be from the left or the right, about our civil liberties and how precious they are to us. MR. CHERTOFF: Well, senator, let me say I am sure everybody's concerns will be taken into account. And as -- I mean, as Thomas Jefferson said in his inaugural, in this we are neither of one party or another, we are all Americans. And I think that's our spirit. SEN. KOHL: I thank you. I thank you, Mr. Chairman. SEN. LEAHY: Thank you, Senator Kohl. And Senator DeWine, you have been waiting here very, very patiently. SEN. DEWINE: Well, and Mr. Chertoff has been very patient. We thank you, sir, very much for your good testimony this morning, and let me just 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's the best historical precedent? What's the closest? MR. CHERTOFF: Well, I think the closest in time is probably the Quirin case which was 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 Nuremburg 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 was a military commission -- there were military commissions that followed the main trial in Nuremburg 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 were the most recent in time. They go back to the Civil War, even on to the trial of Major Andre at George Washington's direction. SEN. 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, senator -- SEN. DEWINE: Say that again. MR. CHERTOFF: I say unlike the Quirin order, which was directed at a particular set of saboteurs, this doesn't have a specific identifiable set of defendants. This is -- it defines a class of defendants. SEN. DEWINE: So it's broad. MR. CHERTOFF: Yes, broader in application. I should point out, senator, though, lest it -- and I think it may be unclear -- that consistent with the -- it's 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. SEN. DEWINE: Can you all tell us how your local task forces are working out? These are the task forces -- the idea of putting -- obviously local law enforcement -- and I am familiar with this by talking to U.S. Attorneys in Ohio. MR. CHERTOFF: We've 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's useful in a number of respects. It's useful in terms of communication of information from us to people in the various states. It's 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's useful in coordinating an anti-terrorism program in each district. These are comparatively new. I think they are working very well. Part of it 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. SEN. DEWINE: Thank you, Mr. Chairman. SEN. LEAHY: Thank you very much. Senator Schumer and then Senator Grassley. SEN. SCHUMER: Thank you, Mr. Chairman. Thank you for holding these hearings and letting us air some of these issues which are really important. And 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'd like to ask a couple of questions about the tribunals. As you know, they brought up a lot of concern. I haven't 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 regular trial, as if it was someone who held up a candy story -- that doesn't 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 come down after -- there may have been elaborate discussion within the administration about this -- I do not know. But we don't know -- we don't have the benefit of that discussion. It just sort of comes down, and I am getting lots of questions on it, and I think lots of us are. So I guess my first question really is this: Most of this as you saw earlier -- 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, it was -- the president I think issued it. SEN. SCHUMER: The president, sorry. MR. CHERTOFF: 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. SEN. SCHUMER: Mmm-hmm. (In agreement.) Was it extensive? I mean, did DOJ have different views that DOD on this? MR. CHERTOFF: I'm not -- I am not in a position to characterize the discussions as being extensive or not, and I don't think it's 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. SEN. SCHUMER: Okay. Then let me ask you now, now that rules are being formulated, have there been discussions with the Department of Justice? I mean, you folks are the experts on trial. I understand there has been a system of military justice for a long time, but these are sort of hybrid -- that's the whole reason we're 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: Well -- and, again, I am limited by my 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 on other departments, including obviously the Department of Justice, for assistance and advice in terms of this process. To my knowledge that hasn't happened yet. Obviously at such time as there's a request made for us to participate or to assist, the Department of Justice, like any other department, will be more than happy - SEN. SCHUMER: That hasn't happened yet? MR. CHERTOFF: To my knowledge that's correct. SEN. SCHUMER: You think you'd be helpful? MR. CHERTOFF: I think that everybody in the government will do everything they can to help with this process. SEN. SCHUMER: Okay. How about how this -- do you know -- there was any consultation on -- 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 don't know -- I am not in a position I think to -- both because of lack of knowledge and also because I don't 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 is something I am not in a position to get into. SEN. SCHUMER: Okay. Let me then ask you just a judgment question from your m any years on various -- in various places in the Justice Department. I thought that the outcome of the anti-terrorism debate on the anti-terrorism bill was a good one. I thought there was give and take. There was public vetting. There was no attempt by those who didn't 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 and 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's 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 didn't vote reluctantly. I thought it was a good product. Why wouldn't that be a better process in terms of some of the things we are discussing here, particularly the tribunals? Why wouldn't it 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 -- but for this to happen? We are going to have other needs and other changes. And 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 isn't it better to vet these things through a discussion process that we usually have through the Congress, rather than just admit it -- 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 if it not the end of the process, it's the beginning of the process, and it directs the Defense Department to take the responsibility now to 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. And of course the Defense Department also appears before Congress and has interaction with Congress as well. So I don't want to presume to predict exactly the way in which the Defense Department 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 under way. But it is not a completed process yet. SEN. SCHUMER: So you believe there will be more consultation than, say, there was up till now? MR. CHERTOFF: I don't know that I am in a position to speak for the Defense Department. I can tell you where the situation is now. The Defense Department obviously interacts with Congress as well, and -- but it's been a matter that has properly been committed to their discretion because after all we are dealing with a power that the president is exercising. It comes from his status as commander in chief, and not his status as head of the law enforcement function. SEN. SCHUMER: Although I'd say it shades in -- some of these areas do shade into both. I mean, you've talked with some others, not just on the tribunal issue but on others where three are law enforcement functions. And there seems to have been the same sort of "We'll figure it out quietly behind the curtain, and then we'll 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. SEN. LEAHY: Thank you very much, Senator Schumer. In fact, I could not but note, Mr. Chertoff, when you say that there's nothing in the president's order that the military commission will 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 brief 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 was quoted as saying proceedings may be kept from the public view for years -- even decades. It's those kind of things -- your own department's briefings to us, the way it's 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 I said even for decades. MR. CHERTOFF: Well, 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 access to proceedings in a manner consistent with the protection of classified information. But as I observed earlier, I think that president's counsel has indicated a general preference to be as open as one can, given the exigencies of the circumstances. SEN. LEAHY: 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 shall we go to the next panel? SEN. HATCH: I think we should go to the next panel, because we've got a number of very important witnesses. I just want to compliment you, Mr. Chertoff. I don't think anybody could have been any more straightforward and articulate about these issues than you, and I believe that we're very fortunate to have you in the position that you're in, and I just want to compliment you for all the hard, difficult and good work that you've done. It's meant a lot to me and a lot to, I think -- it means a lot to our country. Thank you so much. MR. CHERTOFF: Thank you. And thank you, Mr. Chairman. SEN. LEAHY: You can go have your birthday lunch now. (Inaudible.) MR. CHERTOFF: I will. Thank you very much. SEN. LEAHY: Just so we understand, all members understand, please get into either Senator Hatch or myself any follow-up questions, which we will deliver to Mr. Chertoff by the end of business today, and we would ask the response to those by the end of the week so that we could have them in hand prior to -- prepared prior to Attorney General Ashcroft's next week. I thank you. MR. CHERTOFF: Thank you, Mr. Chairman. SEN. SPECTER: Mr. Chairman? SEN. LEAHY: I'm sorry. Yes? SEN. SPECTER: I was asked if I wanted to have a second round, and I said yes. SEN. LEAHY: Oh, I'd asked the ranking member if he wanted further -- (Off mike exchange.) SEN. HATCH: If I could, I really believe we need to get to that next panel. I know that they are pressured on their time, and that's one reason why, you know, I don't make the determination, but I suggested that we should move to the second panel. SEN. SPECTER: Well, the second round is five minutes. SEN. LEAHY: If the senator from Pennsylvania wants five minutes, it's fine with the chairman. Go ahead. But let's see if we can keep it to five minutes. SEN. SPECTER: Mr. Chertoff, as a follow-up to 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. Now, the Congressional Research Service, which has done extensive research on this question, comes down flatly with a 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 marquee (sp) 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, do 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, eight, 14? MR. CHERTOFF: Actually, Senator, what I think I'm saying is that we don't need to get there because, as I understand Section 821 of Title X, 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 -- SEN. SPECTER: Where do you derive the conclusion that Congress chose not to occupy the field? MR. CHERTOFF: Section 821 is entitled "Jurisdiction of Courts Martial, Not Exclusive," and says, "The provisions of this chapter conferring jurisdiction upon courts 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 U.S., 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. SEN. SPECTER: Mr. Chertoff, that case doesn't involve the constitutional authority of Congress. When you talk about occupying the field, you're 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 it's not a matter of legislative interpretation as to what is occupying the field. MR. CHERTOFF: I think -- try to be a little more clear, Senator. What I'm 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 don't portray myself as an expert in that -- the courts have interpreted this section as indicating that Congress has not reserved exclusive jurisdiction over military -- SEN. SPECTER: You're talking about a section of a statute. MR. CHERTOFF: Correct. SEN. SPECTER: You're not talking about a constitutional provision and the application of occupying the field. MR. CHERTOFF: Well, I think what I'm suggesting -- SEN. 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's what we need to get to you. In your statement where you talk about the need for secrecy if there will be a disclosure of matters, that's a cogent reason, if it comes up in a specific case. Let me come back to a question which I had broached, but there wasn't 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? SEN. SPECTER: No, it's 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, the process by which the rule was promulgated, I -- I would certainly be happy to get back to you with an answer to that question. SEN. SPECTER: Well, I'd 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'd appreciate it. MR. CHERTOFF: I'd be happy to. Thank you. SEN. SPECTER: Thank you very much. SEN. LEAHY: Thank you. Thank you, Senator Specter. Thank you, Mr. Chertoff. MR. CHERTOFF: Thank you, Mr. Chairman. SEN. LEAHY: If we could bring the next panel up, please. 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. (Laughter.) Incidentally, we will put in the record a number of press accounts and also leave the record open for any statement from any senators. END. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
This archive was generated by hypermail 2b30 : Wed Nov 28 2001 - 21:09:09 PST