FC: FBI snoops on cable modems; transcript of Senate hearing Wed.

[Declan McCullagh <declan@well.com>]

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.




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