[Senate Hearing 107-704]
[From the U.S. Government Printing Office]
S. Hrg. 107-704
DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE
DEFENDING AGAINST TERRORISM
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 28, DECEMBER 4, AND DECEMBER 6, 2001
__________
Serial No. J-107-50
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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WEDNESDAY, NOVEMBER 28, 2001
STATEMENTS OF COMMITTEE MEMBERS
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 37
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 29
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 44
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 58
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 4
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 20
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 41
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 34
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 25
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 59
WITNESSES
Barr, William P., former Attorney General of the United States... 60
Bell, Griffin B., Senior Partner, King and Spalding, and former
Attorney General of the United States, Washington, D.C......... 74
Chertoff, Michael, Assistant Attorney General, Criminal Division,
Department of Justice, Washington, D.C......................... 8
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law
School, and former Attorney General of the United States....... 68
Katyal, Neal, Visiting Professor, Yale Law School, and Professor
of Law, Georgetown University, Washington, D.C................. 93
Martin, Kate, Director, Center for National Security Studies,
Washington, D.C................................................ 85
Silliman, Scott L., Executive Director, Center on Law, Ethics and
National Security, Duke University School of Law, Durham, North
Carolina....................................................... 79
TUESDAY, DECEMBER 4, 2001 (MORNING SESSION)
STATEMENTS OF COMMITTEE MEMBERS
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 133
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 134
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 123
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 154
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 121
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 127
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 154
WITNESSES
Lynch, Timothy, Director, Project on Criminal Justice, Cato
Institute, Washington, D.C..................................... 184
Nardotti, Michael J., Jr., Major General (Retired), former Army
Judge Advocate General, and Partner, Patton Boggs LLP,
Washington, D.C................................................ 172
Prosper, Hon. Pierre-Richard, Ambassador-at-Large for War Crimes
Issues, Department of State, Washington, D.C................... 135
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service
Professor of Jurisprudence, Law School and Department of
Political Science, University of Chicago, Chicago, Illinois.... 178
Terwilliger, George J., III, former Deputy Attorney General, and
Partner, White and Case, Washington, D.C....................... 156
Tribe, Laurence H., Tyler Professor of Constitutional Law,
Harvard Law School, Cambridge, Massachusetts................... 159
TUESDAY, DECEMBER 4, 2001 (AFTERNOON SESSION)
STATEMENTS OF COMMITTEE MEMBERS
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 199
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 208
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 295
Sessions, Jeff, a U.S. Senator from the State of Alabama......... 279
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 294
WITNESSES
Al-Maqtari, Ali, New Haven, Connecticut.......................... 212
Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of
the American Immigration Lawyers Association................... 218
Dinh, Viet D., Assistant Attorney General, Office of Legal
Policy, Department of Justice, Washington, D.C................. 203
Emerson, Steven, Executive Director, Investigative Project,
Washington, D.C................................................ 241
Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San
Antonio, Texas on behalf of the National Association of
Criminal Defense Lawyers....................................... 229
Strossen, Nadine, President, American Civil Liberties Union, New
York, New York................................................. 262
Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy
Assistant Attorney General, Criminal Division, Department of
Justice, Washington, D.C....................................... 225
THURSDAY, DECEMBER 6, 2001
STATEMENTS OF COMMITTEE MEMBERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 345
Edwards, Hon. John, a U.S. Senator from the State of North
Carolina....................................................... 360
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 334
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 329
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 302
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 325
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 338
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 297
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 355
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 347
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 317
WITNESS
Ashcroft, Hon. John, Attorney General of the United States,
Washington, D.C................................................ 309
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SUBMISSIONS FOR THE RECORD
Addicott, Jeffrey F., Visiting Professor of Law, St. Mary's
University School of Law, San Antonio, Texas, letter........... 365
American Civil Liberties Union, Washington, D.C.:
November 28, 2001, statement................................. 365
Timothy H. Edgar, Legislative Counsel, December 4, 2001,
statement.................................................. 370
American College of Trial Lawyers, Irvine, California, letter and
statement...................................................... 380
American Council of Chief Defenders, Washington, D.C., statement
and attachment................................................. 381
American Federation of Labor and Congress of Industrial
Organizations, Washington, D.C., Executive Council, article.... 383
American Immigration Lawyers Association, Washington, D.C.,
statement...................................................... 384
Amnesty International USA, New York, New York:
November 28, 2001, news release.............................. 385
December 4, 2001, statement.................................. 386
William F. Schulz, Executive Director, statement............. 399
September 11 detainees, sample information................... 400
Angel, Cecil, Detroit Free Press, December 3, 2001, article...... 402
Arab American Institute Foundation, Washington, D.C., report..... 402
Ayub, Ali, Arlington, Virginia, December 3, 2001, letter......... 421
Bar Association of San Francisco, San Francisco, California,
letter......................................................... 422
Baxley, Bill, Attorney, Baxley, Dillard, Dauphin & McKnight,
Birmingham, Alabama, letter.................................... 423
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas and
Hon. Ron Wyden, a U.S. Senator from the State of Oregon,
November 2, 2001, ``Dear Colleague'' letter.................... 424
Clark, Kathleen, Professor of Law, Washington University, St.
Louis, Missouri, statement..................................... 424
Federalist Society, Washington, D.C., paper...................... 427
Feiertag, Terry Yale, Attorney, Mandel, Lipton and Stevenson
Limited, Chicago, Illinois, letter............................. 441
Gittins, Charles W., Lieutenant Colonel, U.S. Marine Corps
Reserve, statement............................................. 443
Glaberson, William, New York Times, December 2, 2001, article.... 445
Hamud, Randall B., Attorney, San Diego, California, November 29,
2001, letter and attachment.................................... 446
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, USA
Today, December 6, 2001, article............................... 450
Heritage Foundation, Washington, D.C., November 5, 2001,
memorandum..................................................... 451
Human Rights Committee, Charles D. Siegal, Chair, Los Angeles,
California, December 3, 2001, letter........................... 460
Human Rights Watch, Washington, D.C.:
statement.................................................... 466
Kenneth Roth, Executive Director, November 15, 2001, letter.. 468
Kmiec, Douglas W., Dean and St. Thomas More Professor of Law, The
Catholic University of America School of Law, Washington, D.C.,
letter......................................................... 470
Koh, Harold Hongju, New York Times, November 23, 2001, article... 475
Law professors and lawyers, joint letter......................... 476
Lewis, Anthony, New York Times:
November 30, 2001, article................................... 545
December 4, 2001, article.................................... 546
McGee, Jim, Washington Post, November 28, 2001, article.......... 547
Miller, Hon. Zell, a U.S. Senator from the State of Georgia,
December 5, 2001, press release................................ 549
National District Attorneys Association, Kevin P. Meenan,
President, Alexandria, Virginia, letter........................ 549
Newsday, November 25, 2001, editorial............................ 550
New York Times:
November 10, 2001, editorial................................. 552
November 16, 2001, editorial................................. 553
December 2, 2001, editorial.................................. 554
Orenstein, James, New York Times, December 6, 2001, article...... 556
Parkway Christian Fellowship, Allan M. Spencer, Jr., Birmingham,
Alabama, letter................................................ 557
People For the American Way, Ralph G. Neas, President,
Washington, D.C., statement.................................... 557
Safire, William, New York Times:
November 15, 2001, article................................... 559
December 6, 2001, article.................................... 560
St. Louis Post-Dispatch:
November 12, 2001, editorial................................. 561
November 27, 2001, editorial................................. 562
Scheffer, David J., Senior Fellow, U.S. Institute of Peace,
Washington, D.C., statement and report......................... 563
Schulz, William F., Amnesty International USA; Kenneth Roth,
Human Rights Watch; Gay McDougall, International Human Rights
Law Group; Catherine Fitzpatrick, International League for
Human Rights; Michael Posner, Lawyers Committee for Human
Rights; Lynn Thomas, Minnesota Advocates for Human Rights; Len
Rubenstein, Physicians for Human Rights; and Todd Howland,
Robert F. Kennedy Memorial Center for Human Rights, joint
letter......................................................... 581
Schwartz, Herman, Professor of Law, American University,
Washington, D.C., statement.................................... 582
Slaughter, Anne-Marie, Professor of Law, Harvard Law School,
Cambridge, Massachusetts:
New York Times, November 17, 2001, article................... 584
and William Burke-White, December 3, 2001, statement......... 585
Wall Street Journal, December 4, 2001, editorial................. 586
Washington Post, November 16, 2001, editorial.................... 587
Wedgwood, Ruth, Wall Street Journal, December 3, 2001, article... 588
Wilgoren, Jodi, New York Times, December 4, 2001, article........ 590
York, Byron, National Review, December 3, 2001, article.......... 591
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ALPHABETICAL LIST OF WITNESSES
Al-Maqtari, Ali, New Haven, Connecticut.......................... 212
Ashcroft, Hon. John, Attorney General of the United States....... 309
Barr, William P., former Attorney General of the United States... 60
Bell, Griffin B., Senior Partner, King and Spalding, and former
Attorney General of the United States, Washington, D.C......... 74
Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of
the American Immigration Lawyers Association................... 218
Chertoff, Michael, Assistant Attorney General, Criminal Division,
Department of Justice, Washington, D.C......................... 8
Dinh, Viet D., Assistant Attorney General, Office of Legal
Policy, Department of Justice, Washington, D.C................. 203
Emerson, Steven, Executive Director, Investigative Project,
Washington, D.C................................................ 241
Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San
Antonio, Texas on behalf of the National Association of
Criminal Defense Lawyers....................................... 229
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law
School, and former Attorney General of the United States....... 68
Katyal, Neal, Visiting Professor, Yale Law School, and Professor
of Law, Georgetown University, Washington, D.C................. 93
Lynch, Timothy, Director, Project on Criminal Justice, Cato
Institute, Washington, D.C..................................... 184
Martin, Kate, Director, Center for National Security Studies,
Washington, D.C................................................ 85
Nardotti, Michael J., Jr., Major General (Retired), former Army
Judge Advocate General, and Partner, Patton Boggs LLP,
Washington, D.C................................................ 172
Prosper, Hon. Pierre-Richard, Ambassador-at-Large for War Crimes
Issues, Department of State, Washington, D.C................... 135
Silliman, Scott L., Executive Director, Center on Law, Ethics and
National Security, Duke University School of Law, Durham, North
Carolina....................................................... 79
Strossen, Nadine, President, American Civil Liberties Union, New
York, New York................................................. 262
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service
Professor of Jurisprudence, Law School and Department of
Political Science, University of Chicago, Chicago, Illinois.... 178
Terwilliger, George J., III, former Deputy Attorney General, and
Partner, White and Case, Washington, D.C....................... 156
Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy
Assistant Attorney General, Criminal Division, Department of
Justice, Washington, D.C....................................... 225
Tribe, Laurence H., Tyler Professor of Constitutional Law,
Harvard Law School, Cambridge, Massachusetts................... 159
DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE
DEFENDING AGAINST TERRORISM
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WEDNESDAY, NOVEMBER 28, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Kohl, Feinstein,
Feingold, Schumer, Durbin, Hatch, Grassley, Specter, Kyl,
DeWine, Sessions, and McConnell.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. This is one of a series of
hearings this Committee is holding on the Department of
Justice's response to the September 11th attacks and on
implementation of the anti-terrorism legislation, the USA
PATRIOT Act.
I know I speak for those on both sides of the aisle in
beginning this hearing by commending the hardworking men and
women of the agencies of the Department of Justice and also our
State and local officers for their dedicated law enforcement
efforts. We have seen it across this country, and, of course,
we have seen it especially in the affected areas of the
terrorist attacks.
Now, at the time Congress worked on the anti-terrorism
bill, many observed how important congressional oversight would
be in the aftermath. And to fulfill our constitutional
oversight obligation, Senator Hatch and I invited Attorney
General Ashcroft to appear before the Committee today, but he
asked to have his appearance put off until next week so that he
could spend time with the U.S. Attorneys who are in town today
and tomorrow. And on Monday, I learned that the Department was
asking that Mr. Chertoff appear as our first witness at this
hearing.
I have accommodated both requests by the Attorney General.
I look forward to his appearance before the Committee next week
on December 6th. In the meantime, our oversight hearing today
and additional hearings next Tuesday should help build a useful
record on several significant issues.
We are all committed to bringing to justice those involved
in the September 11 attacks and to preventing future acts of
terrorism. As we showed in our passage of anti-terrorism
legislation, Congress can act promptly to equip the executive
branch with the appropriate tools to achieve these goals. The
administration requested many new powers, and after adding
important civil liberty protections, we empowered the Justice
Department with new and more advanced ways to track terrorists.
We passed the bill in record time and with an
extraordinarily level of cooperation between Democrats and
Republicans, the House and the Senate, and the White House and
Congress. The separate but complementary roles of these
branches of Government, working together and sharing a unity of
purpose, made that bill a better law than either could have
made through a unilateral initiative.
In the wake of that achievement, the administration has
departed from that example to launch a lengthening list of
unilateral actions, and that is disappointing because we had
worked together to get the original legislation. Rather than
respect the checks and balances that make up our constitutional
framework, the executive branch has chosen to cut out judicial
review in monitoring attorney-client communications and to cut
out Congress in determining the appropriate tribunal and
procedures to try terrorists.
The three institutional pillars of our democratic
Government are stronger guarantees of our freedoms than any one
branch standing alone. America benefits when we trust our
system of Government--our system of checks and balances--to
work as it should. And most Americans trust that it would. And
today we may get some insights into why the administration has
chosen this new approach.
Today and in the days ahead we will have an opportunity to
explore the Executive action to charter military tribunals that
bypass our civilian justice system, to permit eavesdropping on
attorney-client communications without court orders, and the
circumstances under which hundreds are being detained without
public explanation. Whether any or all of these ideas are
popular or unpopular at the moment, as an oversight Committee
we accept our duty to examine them.
The President's Military Order of November 13 paves an
overly broad path to the use of military commissions to try
those suspected of a variety of activities. It is a marked
departure from existing practices and raises a wide range of
legal and constitutional questions and international
implications.
As with several of the unilateral steps announced by the
administration over the last month, a question that puzzles
many about the order on military tribunals is this: What does
it really gain us in the fight against terrorism? Would
military commissions, however expedient, genuinely serve our
national interests in the long term?
As we examine the wisdom of the military order as written,
we should consider the risk whether this could become a
template for use by foreign governments against Americans
overseas. As written, the military order does not incorporate
basic notions of fairness and due process, those notions that
are the hallmark of American justice. It does not specify a
standard of guilt for convicting suspected terrorists.
It decrees that convictions will not be subject to judicial
review, a determination that appears to directly conflict with
our international commitments. It allows the Government to
tailor rules to fit its proof against individual suspects.
In short, the military order describes a type of military
tribunal that has often been criticized by the United States
when other nations have used them. William Safire, in a column
in the New York Times on Monday, described it as a ``fiat
(that) turns back the clock on all advances in military
justice, through three wars, in the past half-century.''
And what would this mean for Americans abroad, for the
traveling public, or, in another instance, for the many U.S.
humanitarian aid workers who often serve in areas subject to
autocratic and unstable regimes? I don't think any of us want,
inadvertently, by our example, to encourage a type of rough
justice those regimes could mete out under military order.
Moreover, these military tribunals may greatly inhibit
cooperation from our partners in the fight against terrorism.
Spain recently captured several suspects it believes are
complicit in the September 11 attacks.
Last week Spain announced that it would not extradite
suspects to the United States if they would be tried by
military commissions instead of civilian courts, and now we
hear a number of European allies share Spain's concerns.
We are the most powerful Nation on earth, the most powerful
Nation history has ever known. And sometimes we indulge in the
luxury of going it alone. But in the struggle against
terrorism, we don't have the option of going it alone. We need
the support of the international community to prevail in a
battle that all of us know could last several years. Would
these military tribunals be worth jeopardizing the cooperation
we expect and need from our allies? That is a question we must
ask ourselves.
Apart from these practical issues, questions remain about
the executive branch's authority to establish military
commissions on its own and without specific congressional
authorization. The Constitution entrusts the Congress with the
power to ``define and punish...Offenses against the law of
Nations.'' On those rare occasions when military commissions
have been used in the past, Congress played a role in
authorizing them.
This administration has preferred to go it alone, with no
authorization or prior consultation with the legislative
branch. Now, this is no mere technicality. It fundamentally
jeopardizes the separation of powers that undergirds our
constitutional system. It may undercut the legality of any
military tribunal proceeding.
Finally, there is the danger that if we rush to convict
suspects in a military commission--relying on circumstantial or
hearsay evidence tailored to serve the Government's case--we
deepen the risk of convicting the wrong people, which would
leave the real terrorists at large. The administration has
cited the landmark case against German saboteurs during World
War II. Let's look a little bit more closely at that.
Two of the eight Germans who landed in New York immediately
informed the Department of Justice about their colleagues'
plans. Immediately. The actions of these men were covered up by
J. Edgar Hoover, the FBI Director at the time. It now appears,
historians believe, that Mr. Hoover was more interested in
claiming credit for the arrests than in ensuring fair treatment
of the two informants, who were then tried with the others, in
secret, and sentenced to death before their sentences were
commuted to a long time at hard labor.
The lesson is that secret trials and lack of judicial
oversight can breed injustice and taint the legitimacy of
verdicts. Our procedural protections are not simply
inconvenient impediments to convicting and punishing guilty
people. They also promote accurate and just verdicts.
So it sends a terrible message to the world that, when
confronted with a serious challenge, we lack confidence in the
very institutions we are fighting for, beginning with a justice
system in the United States that is the envy of the world. Let
us have some confidence in those things that make us strong and
great as a Nation.
The Justice Department's actions since September 11 have
raised many serious questions and concerns, and I hope that
today we can seek answers.
Earlier generations of Americans have stared evil in the
face. We are not the first Americans to face evil. Trial by
fire can refine us, or it can coarsen us. It can corrode our
ideals and erode our freedom. But if we are guided by our
ideals, we can be both tough and smart in fighting terrorism.
Our parents and our parents' parents faced just as great
evils during their lifetime. This country survived and it will
again.
The Constitution was not written primarily for our
convenience. It was written for our liberty by people who knew
in their actions just preceding that could have let them be
hanged had they failed. Instead, they wrote into the
Constitution and our Bill of Rights those things that would
protect them and anybody else who might raise questions.
Many of the choices that we will face after September 11
will test both our ideals and our resolve to defend them. As
these choices emerge, let us first pause long enough to ask:
What does it gain us?
I look forward to hearing from our witnesses today and to
hearing from the Attorney General next week, and I yield to my
good friend and colleague, the senior Senator from Utah.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I want to
thank you for convening this timely hearing. The issues we will
address today have generated a great deal of attention, and I
hope that this hearing will allay the concerns about the steps
our Government is taking to protect our Nation from terrorists.
I must say, however, that with only a few notable
exceptions, much of the public criticism appears confined to
those who make their living carping about the Government--
especially Republican administrations. I am reminded of a
recent line from the journalist Christopher Hitchens, a self-
described man of the left. Criticizing the reaction of many on
the left to the war on terrorism, Hitchens charged that ``all
the learned and conscientious objections, as well as all the
silly or sinister ones, boil down to this: Nothing will make us
fight against an evil if that fight forces us to go to the same
corner as our own government.''
The American people have quite different feelings. In my
travels over the holidays last week and before, I was struck by
the almost universal praise and gratitude Americans feel toward
the President and his administration for the steps they are
taking to defeat terrorists abroad and to protect us here at
home. To their credit, the American people instinctively know
that our country's leaders are acting out of a sincere concern
for both our security and our liberty. And unlike some, most
Americans also realize that, as Harvard Professor Laurence
Tribe--whom no one would accuse of being a member of the ``vast
right-wing conspiracy''--acknowledged, ``Civil liberties is not
only about protecting us from our government. It is also about
protecting our lives from terrorism.'' Indeed, most Americans
worry that we are not doing enough to thwart potential
terrorist attacks, not that we are doing too much. We might be
better served if next week's hearing with the Attorney General
focused on whether we have done all we can to address the
threat of terrorism and to help our President obtain all the
tools he needs to fight Osama bin Laden and the Al Qaeda
organization.
Still, oversight hearings such as this one today provide a
valuable service to us as Members of Congress and to the public
at large. We will learn from Assistant Attorney General Michael
Chertoff the legal and policy justifications underlying the
administration's decision to monitor lawyer-client
communications, detain aliens, and employ military commissions
for non-citizens accused of terrorism. The six other
witnesses--four of whom were called by the chairman--will, one
hopes, provide their own dispassionate analysis of the legal
and policy issues raised by these powers. One only regrets
that, given the importance of this hearing and the need for
Congress to act in a bipartisan manner in such times, we were
not able to agree to an equal number of experts to present a
balanced view and analysis of the issues. Nonetheless, it is my
hope that the testimony we do have here will dispel many of the
needlessly alarmist misconceptions one hears in the media and
from the media.
Mr. Chairman, before I go further, I want to clear up one
small misconception concerning the letter you and I recently
sent to the Attorney General. It was widely reported that we
demanded that he appear and that I shared in your apparent
displeasure with his alleged refusal to cooperate with this
Committee. I should note that I did join you in asking that the
Attorney General come before this Committee, but I strongly
disagree with those who charge that the Attorney General has
been less than completely responsive to the Congress. And while
I do agree with you that we have a legitimate oversight
responsibility, I also want to point out that each time we have
asked the administration to appear, they have been more than
willing to comply.
Since September 11, the Attorney General has, in effect,
been the commanding general of our domestic defense, a job that
requires around-the-clock attention on his part. He has borne
the awesome responsibility of ensuring that our military
efforts overseas are not met with more terrorist attacks at
home. I for one want to thank the President, the Attorney
General, and the rest of our law enforcement and intelligence
communities for performing a tough job well in a very difficult
time.
Now, Mr. Chairman, I also want to clarify some of the
misconceptions about lawyer-client monitoring, detention of
aliens, and military commissions, which are the issues that we
intend to address today.
First, some have charged that lawyer-client monitoring is a
flagrant violation of the Fourth and Sixth Amendments to the
Constitution. While I agree that we should examine this power
closely to determine whether it is a wise policy, the
administration's regulation has been carefully crafted to avoid
infringing on constitutional rights. It is well-established
that inmates and detainees have greatly diminished Fourth
Amendment rights while in custody, and the Supreme Court, in
Weatherford v. Bursey, upheld the Government's authority to
monitor detainee-attorney conversations where there is a
legitimate law enforcement interest in doing so. The
communications are protected from disclosure, and no
information obtained through the monitoring is used by the
Government in a way that deprives the defendant of a fair
trial. The regulation recently promulgated by the Department of
Justice appears to satisfy all of these conditions.
With respect to the detention of aliens, some have accused
the Government of unlawfully holding detainees incognito and
preventing them from obtaining legal counsel. As the Attorney
General made clear at a news conference yesterday, these
charges are, at best, irresponsible exaggerations. Those being
held are in custody on criminal charges, immigration
violations, or pursuant to material witness complaints under
longstanding statutory authority. In other words, those people
have committed crimes, violated our Nation's immigration laws,
or have information critical to the terrorism investigation.
And to the extent that they are not released on bond, it is
because a judge has determined that they are likely to flee,
will likely pose a danger to the community, or, in the case of
immigration detainees, are alleged to be deportable from the
United States on the basis of criminal--including terrorist--
activity.
What is more, the detainees also have access to counsel who
can assist them in challenging the legality of the detention.
Any alien charged with a criminal offense or held as a material
witness has the right to court-appointed counsel. Under
longstanding immigration law, any alien charged with an
immigration violation is unequivocally afforded a minimum of 10
days to secure counsel and may request a continuance for
additional time if necessary. Many public interest groups have
stepped in to provide counsel to those immigration detainees
who cannot otherwise afford a lawyer.
As for the charge that these people are being held
incognito, the Attorney General has, at least in my view,
rightly refused to provide a public list of the names of the
detainees. I personally agree, as an advocate of personal
privacy rights, that such a list would not only alert our
enemies to the status of our investigation, it would also
violate the privacy of those being held. I find it richly
ironic that the same civil liberties groups that adamantly
oppose the publication of the names of sexual predators now wax
indignant when the Department of Justice refuses to provide the
New York Times, the Washington Post, any other newspaper or any
other media source a list of those detained in connection with
this terrorism investigation.
Finally, there have been many alarmist and misleading
statements about the potential use of military commissions.
Most glaring is the claim by some of my colleagues this past
weekend that military tribunals are ``unconstitutional.'' The
Supreme Court has repeatedly upheld the constitutionality of
using military commissions to prosecute individuals charged
with crimes under the law of war. Specifically, the Court
unanimously upheld the constitutionality of President
Roosevelt's use of a military commission to try eight Nazi
saboteurs who entered the United States via submarine during
World War II in Ex Parte Quirin. The Court also upheld the use
of a military commission at the end of the war to try the
Japanese commander in the Philippines for violations of the
laws of war, In re Yamashita. As the Supreme Court has
explained, ``[s]ince our Nation's earliest days, such
commissions have been constitutionally recognized agencies for
meeting many urgent governmental responsibilities related to
war.'' That is in Madsen v. Kinsella.
Furthermore, contrary to recent suggestion, military
tribunals can be--and have been--established without further
congressional authorization. Because the President's power to
establish military commissions arises out of his constitutional
authority as Commander-in-Chief, an act of Congress is
unnecessary. Presidents have used this authority to establish
military commissions throughout our Nation's history, from
George Washington during the Revolutionary War to President
Roosevelt during World War II. Congress, for its part, has
repeatedly and explicitly affirmed and ratified the use of
military commissions. Article 21 of our Code of Military
Justice, codified at Section 821 of Title 10 of the United
States Code, expressly acknowledges that military commissions
have jurisdiction over offenses under the law of war.
Now, Mr. Chairman, the oversight we conduct today can be a
useful exercise only if we steer clear of distortion and focus
on the policy choices we face. That these tools--military
tribunals, detainee-attorney monitoring, and detention of
aliens--are constitutional is largely beyond dispute. On the
other hand, whether, how, and when they should be employed, and
against whom, and with what oversight and accountability are
questions we have a right to ask. And the administration is
wise to answer.
As we confront these policy issues, I would ask my
colleagues to heed the strong sentiment of the majority of the
American people, both liberal and conservative, to do more than
just criticize. It is easy to criticize from where we sit; it
is much harder to go to work every day knowing that you are the
person in charge of protecting Americans from terrorists. Yes,
the administration has been aggressive in using all the
constitutional powers at its disposal to protect Americans
under these situations. But given what happened on September
11, wouldn't they be unforgivably derelict if they did not do
everything in their power? After all, our enemies in this war
are not, as many on the extreme left are fond of saying, simply
trying to change our way of life. They are trying to kill
Americans--as many as they possibly can. And though we may
never know for certain, I for one believe that the steps taken
by our law enforcement and intelligence communities have saved
us from even more harm.
I think this is a legitimate hearing. It is an important
hearing. It is legitimate to ask tough questions. These are
important questions. And it is legitimate for us to find out
just why the administration has taken the positions that it has
in some of these areas. But let nobody be deceived. The
administration can take these positions. They have to justify
them, but they can take them, and I think there is more than
enough information here to justify the positions they have
taken.
I myself am very concerned when these type of broad powers
are used, but under these circumstances I am less concerned,
hoping that we can prevent future terrorist acts. But I want to
thank you, Mr. Chairman, for calling this hearing. I think it
is the right thing to do. I think you have led us in the proper
direction in calling it and in asking the appropriate people
the tough questions that need to be asked. And I look forward
to hearing from our witnesses.
Chairman Leahy. Thank you.
Mr. Chertoff, 2 days ago, we received a request that you
wanted to testify, and I am happy to concede to your request,
with the understanding, of course, that the Attorney General
will be here next week. I want to wish you a happy birthday on
behalf of the Committee. I am sure this is the thing that you
have looked forward to the most as a way to spend your
birthday.
[Laughter.]
Chairman Leahy. So consider it our gift to you. Please go
ahead.
STATEMENT OF MICHAEL CHERTOFF, ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Mr. Chertoff. Thank you, Mr. Chairman. Good morning, Mr.
Chairman, Senator Hatch, members of the Committee. I do welcome
the opportunity and appreciate the invitation to appear today
to talk about the Department of Justice's response to the
attacks of September 11th.
Mr. Chairman, I agree that we have taken steps here which
represent a departure from some of the things we have done in
recent times. But then, again, we are not in recent times. We
face an extraordinary threat to our national security and
physical safety of the American people of a character that, at
least in my lifetime, we have never faced before.
The President and the Attorney General have directed the
Justice Department to make prevention of future terrorist
attacks our number one and overriding priority. And to that
end, we are aggressively and systematically conducting an
investigation that is national and international in scope. But
I believe we are doing so within carefully established
constitutional limits.
In fact, in conducting this investigation, I should point
out we are already making use of the tools which the Congress
passed in the recently enacted USA PATRIOT Act for which we
commend the Congress in acting so swiftly.
Members of this Committee have raised important questions
about some of the investigatory steps that we have taken in
recent weeks, and I look forward during the course of this
hearing to learning more about the Committee's specific
concerns, but also to having the opportunity to assure the
Committee that what we are doing is both sound policy and well
within constitutional limits.
All of us understand and appreciate the importance of
honoring the Constitution's enduring values, even in a time of
national crisis. And we believe the Constitution gives us the
tools to respond to the threat while remaining faithful to our
basic values.
I don't need to restate for the Committee the images we all
bear of September 11th: planes crashing into the Twin Towers
and the Pentagon, grieving and devastated faces of survivors,
the firefighters, the image of firefighters ad police heroes,
and even the passengers on United Flight 93 who were forcibly
enlisted as combatants against terrorists. All of us have these
images burned into our national consciousness.
But as a Nation, the overwhelming, brute fact of Senator is
this: This country was wantonly and deceitfully assaulted by an
enemy intent on destroying as many innocent lives as possible.
Before September 11th, Osama bin Laden and his henchmen wanted
to kill thousands of innocent Americans. On September 11th,
they succeeded. And since September 11th, bin Laden and his co-
conspirators have brazenly announced that they will kill more
of us.
In a February 1998 directive, bin Laden ordered his
followers ``to kill Americans and plunder their money whenever
and wherever they find it.'' Just last month, bin Laden made a
video, declaring to his supporters, ``The battle has moved
inside America, and we shall continue until we win this battle,
or die in the cause and meet our maker.''
So for those who question whether we are at war, my answer
is Mr. bin Laden has declared war on us.
Unlike enemies we have faced in past wars, however, this is
an enemy that comes not openly but cravenly and in disguise.
The terrorists in the Al Qaeda network plan their terrors years
in advance. They are sophisticated, meticulous, and patient.
Of particular concern is their use of so-called sleepers. A
sleeper is a committed terrorist sent sometimes years in
advance into a possible target location, where he may assume a
new identity and lead an outwardly normal life, all the while
waiting to launch a terrorist attack. I will give you a example
from the 1998 embassy bombing in Nairobi, Kenya.
Mohamed Odeh, who was convicted early this year for
participating in that bombing, spent 5 years undercover in
Kenya while actively assisting Al Qaeda. During that time he
started a fishing business. He got married. He lived an
outwardly modest and quiet life. But when called upon, he
played a critical role in unleashing the terror that killed
hundreds of innocent people.
Now, how are we going to combat the terrorists' use of
sleepers? In many ways it is more difficult than looking for
the proverbial needle in a haystack because in this instance
the needle comes in disguise, disguised as a stalk of hay. We
could continue as before and hope for the best, or we can do
what we are currently doing: pursuing a comprehensive and
systematic investigative approach that uses every available
lawful technique to identify, disrupt, and, if possible,
incarcerate or deport persons who pose threats to our national
security.
Are we being aggressive and hard-nosed? You bet. But let me
emphasize that every step that we have taken satisfies the
Constitution and Federal law as it existed both before and
after September 11th.
Let me now turn very briefly to four areas that I know are
of particular concern to the Committee.
First, the number of persons who have been arrested or
detained arising out of the investigation into the events of
September 11th and the conditions of their detention. There are
currently 548 individuals who are in custody on INS charges and
55 individuals in custody on Federal criminal charges. Every
person detained has been charged with a violation of either
immigration law or criminal law or is being lawfully detained
on a material witness warrant issued in connection with a grand
jury investigation.
Every one of these individuals has the right to counsel.
Every person detained has the right to make phone calls to
family and attorneys. Nobody is being held incommunicado.
The identity of every person who has been arrested on a
criminal charge is public. We have not released the names of
persons being held on material witness warrants because those
warrants are issued under seal as related to grand jury
proceedings.
Finally, we have not compiled a public list of the persons
detained on immigration charges, both to protect their privacy
and for legitimate law enforcement purposes. But I emphasize
there is nothing to prevent any of these individuals from
identifying themselves publicly or communicating with the
public.
Second, law enforcement is seeking to interview just over
5,000 persons on a voluntary basis. This list was assembled
using common-sense criteria that take into account the manner
in which Al Qaeda has traditionally and historically operated.
So, for example, persons have been identified for interview
because they entered the United States with a passport from one
of about two dozen countries where Al Qaeda typically recruits
or trains its members. Or people have been identified for
interviews because they entered the country on particular types
of visas that experience shows tend to be favored by
terrorists.
Third, the monitoring of attorney-client communications.
This monitor is taking place under a Bureau of Prisons
regulation issued on October 31. It arises out of a 1996
Department regulation that permits monitoring of communications
of inmates in Federal prisons where there is a substantial risk
that if those people communicate with the outside, they may
cause death or serious injury to others. The regulation applies
only to 16 out of approximately 158,000 inmates in the Federal
system.
The regulation or the regulatory amendment that was issued
on October 31 extends the pre-existing special regulation to
allow the monitoring of attorney-client communications for this
very small group of people only if the Attorney General makes
an additional finding that reasonable suspicion exists that a
detainee may exploit his attorneys to communicate with others
to facilitate acts of terrorism. And we have set up substantial
safeguards to protect against the misuse of this information,
which I will be happy to discuss.
Finally, I would like to turn briefly to the subject of
military commissions. Unmistakably, we are at war. Our homeland
was suddenly and deliberately attacked from abroad on September
11th. I share with you, Mr. Chairman, an absolute confidence in
the ability of our criminal justice system to deal with any
kind of criminal act. But I also recognize that the criminal
justice system is not the only tool the President must have in
exercising his responsibilities not only as Chief Executive but
as Commander-in-Chief in a time of war.
The fact is that military commissions are a traditional way
of bringing justice to persons charged with offenses under the
laws of armed conflict. The Supreme Court has repeatedly upheld
the use of such commissions, and there may be sound policy
reasons to employ them in individual cases, including urgent
concerns about physical security and protection of classified
information.
What the President's order of November 13th did was to
initiate the process of invoking this traditional
constitutional power. The order assigns to the Department of
Defense primary responsibility for developing the specific
procedures to be used. That process is ongoing, and, therefore,
it is simply too early to talk about what the specific details
will be about how--
Chairman Leahy. Excuse me. Somebody must have an urgent
phone call. Why don't we let them step out of the room so they
can answer it?
Go ahead, Mr. Chertoff.
Mr. Chertoff. Thank you, Mr. Chairman. That process of
writing these regulations is ongoing, and, therefore, it is
simply too early to discuss the specific details of how any
such commission would operate. But certain protections are
already built into the President's initial order, which, of
course, can be expanded upon by rules that are issued by the
Department of Defense.
Under the President's order, every person will have the
right to an attorney. Under the President's order, there will
be a full and fair trial of the charges. And, notably, as an
indication of the seriousness with which the President views
the exercise of this power, he has taken the responsibility to
determine whether trial by commission is appropriate in an
individual case.
In this respect, therefore, Mr. Chairman, as in all others,
the President has exercised his established constitutional
powers to defend against the extraordinary threat which this
Nation now faces. And I would be happy to respond to questions
the Committee has.
[The prepared statement of Mr. Chertoff follows.]
Statement of Hon. Michael Chertoff, Assistant Attorney General,
Criminal Division, Department of Justice
Good morning, Mr. Chairman, members of the Committee. I welcome the
opportunity to appear before you today to discuss the Department of
Justice's response to the terrorist attacks of September
11th.
The country faces a truly extraordinary threat to our national
security and the physical safety of the American people, one that has
necessitated an extraordinary redefinition of our mission. The
President and the Attorney General have directed the Justice Department
to make prevention of future terrorist attacks our top and overriding
priority. We are pursuing that priority aggressively and systematically
with a national and international investigation of unprecedented scope,
but we are carefully doing so within established constitutional and
legal limits. We are also taking advantage of the new tools and
authorities provided by the USA PATRIOT Act to enhance our
investigation. For example, we have, on a number of occasions, already
made use of the new authorities relating to nationwide search warrants,
and amendments to 18 U.S.C. Sec. 2703 which allow us to more
efficiently obtain e-mail and other information from internet service
providers. We have also relied on the Act to begin expanding our
sharing of information with the Intelligence Community. I know from the
correspondence that the Department has received from members of this
Committee that a number of you have in good faith raised important
questions about some of the investigatory steps we have taken apart
from the new legislation. I look forward during the course of this
hearing to learning more about your specific concerns and to
explaining--to the extent I can without compromising the on-going
investigation--the reasons for the investigative approaches we have
taken.
In my opening remarks, I would like to briefly outline the nature
of the threat we are facing and explain why we believe the threat
necessitates the type of investigative response we have been pursuing.
The images of September 11th--the planes crashing into
the twin towers; the grieving and devastated faces of survivors, the
heroism of the police, the firefighters and those passengers who were
forced into the role of combatants against terrorists--these images and
many others have been permanently seared into our collective national
consciousness. Each of us has personal recollections of that day--where
we were when we first heard, what our first thoughts were, what we did
to see if our loved ones were safe. It is a day that each of us will
always remember in his or her own way.
But as a nation, the overwhelming, brute fact of September
11th is this: This country was wantonly and deceitfully
assaulted by an enemy intent on destroying as many innocent lives as
possible. Before September 11th, Usama Bin Laden and his
henchmen wanted to kill thousands of innocent American civilians. As we
sit her, he and his co-conspirators brazenly announced that they will
kill more of us. He and his followers actually believe they have a duty
to kill Americans. Those are not my words; those are his words.
In a February 1998 directive, Bin Laden ordered his followers ``to
kill Americans and plunder their money whenever and wherever they find
it.'' And just last month, Bin Laden gave an inflammatory interview
which has been circulating, in the form of a video, among supporters in
the al Qaida network. He said: ``Bush and Blair. . . don't understand
any language but the language of force. Every time they kill us, we
will kill them, so the balance of terror can be achieved.'' He went on:
``The battle has been moved inside America, and we shall continue until
we win this battle, or die in the cause and meet our maker.''
So we have a terrorist organization with thousands of members and
followers worldwide, which is fanatically committed to killing
Americans on our own soil, through suicide attacks if necessary. And
unlike the enemies we have faced in past wars, this is an enemy that
comes not openly, but deceitfully, in disguise. We know from what we
have learned about the 19 hijackers from September 11thth
and what we know about those responsible for earlier attacks against
America that the terrorists in the al Qaida network plan their terror
years in advance. They are sophisticated, meticulous, and very patient.
Of particular concern is their use of so-called ``sleepers.'' A
sleeper is a committed terrorist sent sometimes years in advance into a
possible target location, where he may assume a new identity and lead
an outwardly normal lifestyle, while waiting to spring into action to
conduct or assist in a terrorist attack. Although it would be
inappropriate for me to get into details of the pending investigations,
I can give you an illustrative example of a sleeper from one of the
1998 embassy bombing cases.
Mohamed Sadeek Odeh was convicted early this year for participating
in the August 1998 bombing of the U.S. embassy in Nairobi, Kenya. He
was sentenced to life imprisonment in October. The evidence at trial
established that Odeh was the technical advisor to those who carried
out the bombing, having received explosives training at some of al
Qaida's terrorist camps in Afghanistan. One of the key pieces of
evidence against Odeh was a memo book that had sketches of the vicinity
of the embassy and what appeared to be a suggested location for the
bomb truck.
The evidence in the case revealed that Odeh became a sworn member
of al Qaida in 1992 in Afghanistan and was subsequently sent to Somalia
to train Islamic militants. In 1994, Odeh moved to Mombasa, a coastal
town in southeast Kenya. Once in Mombasa, Odeh set up a fishing
business with the help of Muhammad Atef, the apparently late military
commander of al Qaida. As part of this business, Odeh was given a large
boat, which was to be used to transport fish along the Kenyan coast.
According to at least one of the co-defendants, this boat was used to
transport al Qaida members from Kenya to Somalia in 1997 and was
otherwise used for jihad.
Odeh got married in Mombasa in November 1994. Several individuals
who later carried out the bombings of our embassies in Nairobi and Dar
es Salaam attended the wedding. Between 1994 and 1997, Odeh maintained
regular contact with various al Qaida leaders, including Wadih el Hage
and Mustafa Fadhil, two of the leaders of the East African cell of al
Qaida. In 1997, he was sent to Somalia once again to train Islamic
militants.
After living in Mombasa for a few years, Odeh moved to Malindi,
another coastal town in Kenya, and then later to a small village known
as Witu, where he lived until August 1998. At all times, Odeh lived
modestly and quietly. For example, in Witu, Odeh lived in a hut, where
he had no telephone or other means of communication.
But when the time came to participate in plotting the embassy
bombings, Odeh sprang into action. In the Spring and Summer of 1998, he
met other al Qaida members in Kenya and discussed ways to attack the
United States. In the days immediately preceding the August 7, 1998
embassy bombings, Odeh met repeatedly with al Qaida members who
participated in the bombing in Mombasa and Nairobi. Hours before the
bombing, Odeh suddenly left Kenya, flying to Pakistan during the night
of August 6 and through to the early morning of August 7. Odeh was
detained at the Karachi airport (due to a bad false passport), and
eventually returned to Kenya.
Odeh is just one example of how an al Qaida member was able over
time to integrate himself into the local environment in a way that made
his terrorist activities much more difficult to detect. Examples of
other sleepers can be found in the Millennium bombing case, which
involved planned attacks against various U.S. facilities during the
millennium, and in the 1993 World Trade Center bombing.
How can we combat the terrorists' use of sleepers? In many ways it
is more difficult than trying to find a needle in a haystack because
here the needle is masquerading as a stalk of hay. We could do nothing,
and hope we get lucky as we did in the Ressam case. Or, as we are
currently doing, we can pursue a comprehensive and systematic
investigative approach, informed by all-source intelligence, that
aggressively uses every available legally permissible investigative
technique to try to identify, disrupt and, if possible incarcerate or
deport sleepers and other persons who pose possible threats to our
national security.
Without understanding the challenge we face, one cannot understand
the need for the measures we have employed. Are we being aggressive and
hard-nosed? You bet. In the aftermath of September 11th, how
could we not be? Our fundamental duty to protect America and its people
requires no less.
Yet it is important to emphasize that the detentions, the targeted
interviews, and the other aggressive investigative techniques we are
currently employing would all have been legal under the Constitution
and applicable federal law on September 10th--Nobody is
being held incommunicado; nobody is being denied their right to an
attorney; nobody is being denied due process. As federal prosecutors,
we have great discretion under the Constitution and well-established
federal law to decide how aggressively to investigate and charge cases.
In light of the extraordinary threat facing our country, we have made a
decision to exercise our lawful prosecutorial discretion in a way that
we believe maximizes our chances of preventing future attacks against
America.
Before responding to your questions, let me now turn briefly to
four areas that I know are of interest to some of you: First, the
number of persons who have been arrested or detained arising out of the
investigation into the events of September 11th and the
conditions of their detention. As the Attorney General indicated
yesterday, there are currently 548 individuals who are in custody on
INS charges and 55 individuals in custody on federal criminal charges.
The Department has charged 104 individuals on federal criminal charges
(which includes the 55 in custody), but some of the indictments or
complaints are under seal by order of court. Every detention is fully
consistent with established constitutional and statutory authority.
Every person detained has been charged with a violation of either
immigration law or criminal law, or is being lawfully detained on a
material witness warrant.
Every one of these individuals has a right to access to counsel. In
the criminal cases, and the case of material witnesses, the person is
provided a lawyer at government expense if the person cannot afford
one. While persons detained on immigration charges do not have a right
to lawyers at public expense, INS policy is to provide each person with
information about available pro bono representation. Every one of the
persons detained, whether on criminal or immigration charges or as a
material witness, has the right to make phone calls to family and
attorneys. None is being held incommunicado.
The identity of every person who has been arrested on a criminal
charge is public. We have not compiled a public list of the persons
detained on immigration charges for two reasons: to protect the privacy
of those detained and for legitimate law-enforcement purposes. If the
government publicly released the identities of all those being
detained, they could be labeled as being connected to September 11,
even if the investigation ultimately concludes there is no link. In
addition, there is no reason to advertise to al Qaida which of its
members we may have in custody and where they are located, or to give
them information that may help them gain insights about the course of
our investigation. We have not released the names of persons being held
on material witness warrants because they are issued under seal as
related to grand jury proceedings in different districts. They cannot
be disclosed.
Second, law enforcement is seeking to interview just over 5,000
persons voluntarily. These are people who we believe may have
information that is helpful to the investigation or to disrupting
ongoing terrorist activity. The list of persons we wish to interview is
simply a common-sense effort to identify persons who might conceivably
have some information that might be helpful to the investigation-
indeed, some of these persons might not be aware that information they
have is helpful. The list was assembled by using common-sense criteria
that take into account the manner in which al Qaida has operated-for
example, that particular countries have been a focus of recuiting.
These persons have been identified for interview because they entered
the United States with a passport from one of about two dozen
countries, which intelligence information indicates al Qaida recruits
from. They use particular types of Visas that al Qaida appears to
favor. They entered the United States after January 1, 2000. The
persons are not suspects, but simply people who we want to talk to
because they may have helpful information.
Third, I would like to discuss the monitoring of attorney-client
communications under a Bureau of Prisons regulation promulgated on
October 31. The Justice Department has amended a 1996 regulation that
permits the monitoring of certain communications of inmates who are
subject to special administrative measures. This regulation currently
applies to only 16 of the 158,000 inmates in the federal system. Under
this pre-existing regulation, a very small group of the most dangerous
inmates are subject to special administrative measures if the attorney
general determines that unrestricted communication with these inmates
could result in death or serious bodily harm to others. When that
determination has been made, restrictions are put on those inmates'
ability to communicate with and contact others. The amendment
promulgated on October 31 extends the regulation to permit the
monitoring of attorney-client communications for this very small and
discrete group of inmates only if the Attorney General makes an
additional finding that reasonable suspicion exists that a particular
detainee may use communications with attorneys to further or facilitate
acts of terrorism.
The regulation provides for important safeguards to protect the
attorney-client privilege. First, the attorney and his client will be
notified if their communication will be monitored. Second, the team
monitoring the communications will have no connection with any ongoing
prosecution that involves the client. Third, no privileged information
will be retained by the persons monitoring the conversations; the only
information retained will be unprivileged threat information. Fourth,
absent an imminent emergency, the government will have to seek court
approval before any information is used for any purpose from those
conversations. And fifth, no information that is protected by the
attorney-client privilege may be used for prosecution.This regulation
accords with established constitutional and legal authority. Courts
have long recognized that a client's communications are not privileged
if they are in furtherance of criminal activity. And the Supreme Court
has expressly recognized that the government may, consistent with the
right to counsel, monitor attorney-client communications if there is a
legitimate law-enforcement reason for doing so and if privileged
communications are not used against the defendant. Both those
conditions are met here.
Finally, I'd like to briefly mention military commissions. We are
at war: Our homeland was suddenly and deliberately attacked from abroad
on September 11, resulting in the intentional murder of thousands of
unarmed civilians. Usama Bin Laden has candidly said he intends to
continue his attacks as long as he and his organization are able. In
view of such circumstances, military commissions are a traditional way
of bringing justice to persons charged with offenses under the laws of
armed conflict. The Supreme Court has repeatedly upheld the use of such
commissions.
The use of such commissions is not only legally proper; it also
represents sound policy. Military commissions are best equipped to deal
with the significant security concerns that will necessarily arise from
a trial of the necessarily arise from a trial of the perpetrators of
the September 11th terrorist attacks. Use of civilian courts
could place judges and juries-and, indeed, entire cities where the
courts are located-at great risk. Proceedings before military
commissions can better safeguard classified information that may be
used at the trial of members of al Qaida. Commissions will be able to
consider a wider range of relevant evidence, including intelligence
information, helping to render just verdicts. Furthermore, the attacks
on September 11 were attacks launched by a foreign power that killed
thousands of innocent people, which is not just another matter on the
criminal docket. The procedures developed for trials in civil courts
are simply inappropriate for the trial of ware crimes. And the use of
military commissions will be limited to the trial of war crimes.
The President's order represents just the first step in invoking
this traditional power to prosecute those who violate the well-settled
law of war. The order assigns the Department of Defense primary
responsibility for developing the specific procedures to be used, and
because that process is still ongoing, it is simply too early to
discuss the specific details of how any such commissions would operate.
However, certain minimal protections are already built into the order,
which can be expanded upon by regulations promulgated by the Defense
Department. The order specifies that all persons will have the right to
an attorney. The order specifies that the proceedings must allow a full
and fair trial of the charges. In addition, the order requires humane
conditions of pretrial detention, including the right to free exercise
of religion during detention.
And the President will himself make the determination whether trial
by commission will be appropriate in an individual case. I would now be
happy to respond to any questions the Committee may have.
Since September 11th, hundreds of federal prosecutors
from the Department's Criminal Division and from U.S. Attorney's
Offices across the country, along with thousands of federal, state, and
local law-enforcement personnel, have been working tirelessly, above
and beyond the call of duty, to carry out the investigation.
Chairman Leahy. A couple of housekeeping things before we
begin. Mr. Chertoff, obviously, you can see by the red light
you went considerably over the amount of time we had agreed
upon, and I had no objection to that because I think, as far as
you are speaking for the administration, you should have that
opportunity. But because a number of Senators have other
hearings and meetings they have to go to, we are going to have
to keep to the schedule after that.
Also, as we have asked the Attorney General a number of
questions in letters, I hope that we will have those answers
before he testifies next week, but also that all members, if
they have follow-up questions for Mr. Chertoff, get them to him
by close of business today so he can have the answers back to
us by the end of this week.
So, starting with that, Mr. Chertoff, I worked closely with
the White House Counsel's Office and the Attorney General and
actually with you in crafting the new anti-terrorism law. In
fact, from September 19, when the Attorney General and I
exchanged our legislative proposals, until October 26th, when
the President signed the new law, I think I talked with the
Attorney General sometimes two and three times a day about the
tools needed by our law enforcement and intelligence agencies
to prevent terrorist acts and how we are going to bring those
people to justice, those who are still alive, who may have been
involved in planning this or planning future attacks.
I took those responsibilities very seriously, like all
Americans, whether Republican or Democrat, all Americans. We
share an abhorrence of the attacks. We wanted the people
brought to justice.
But at no time during those discussions--and there were a
lot of them, with you, with the President, with the Attorney
General. At no time was the question of military commissions
brought up. In fact, to the contrary, at the Attorney General's
request, the Congress expanded the reach of several criminal
provisions so that the authorities in this country are clearly
authorized to exercise extra-territorial jurisdiction in
bringing foreign violators to justice in our courts. But less
than a month after the ink was dry, the President issues this
military order directing the Secretary of Defense to move
forward.
My question is this: When did the administration begin
considering the use of military commissions rather than our
civilian court system to adjudicate charges against the
terrorists responsible for the September 11 attacks? When did
that start?
Mr. Chertoff. Mr. Chairman, I don't know that I can give
you a precise date about when it started, nor can I--
Chairman Leahy. Well, when did you first hear about it?
Mr. Chertoff. I certainly have heard discussion about this
or heard discussion about this going back some weeks. I think
what is important to bear in mind--
Chairman Leahy. Did you hear discussions about it prior to
our discussions here in the Committee, in both our formal and
informal discussions with you, as we put together the anti-
terrorism--
Mr. Chertoff. I would assume--it is probably fair to assume
that some people were discussing these matters at various
points in time while we were undergoing the process of working
out--
Chairman Leahy. But you didn't feel it at all necessary to
tell any of us that you were discussing that as you were asking
for these extraordinary powers that we were giving you in the
USA PATRIOT Act?
Mr. Chertoff. I think, Mr. Chairman, the reason for that is
as follows: We are talking about two totally different
functions. We came before Congress, and I think rightly so, and
with gratitude for Congress' willingness to move swiftly, to
enhance the law enforcement powers which we are currently using
as we speak in fighting terrorism, and that includes the full
panoply of powers we can use to enforce the Federal criminal
laws.
At the same time, everybody recognized--and I don't think
this is a secret--that the President has responsibilities apart
from those as chief of law enforcement.
Chairman Leahy. But, Mr. Chertoff, with all due respect,
you are not answering my question. The administration, as you
have testified, is obviously confident that the executive
branch has the authority to establish these military
commissions, even though there are a number of experts, legal
experts, who feel otherwise, who feel that we have to authorize
the setting up of the commission and the President has the
authority to go forward with it.
But stepping back for a moment from who is right or who is
wrong, which legal experts are right and which are wrong, you
are a former prosecutor. Like all prosecutors, you know that if
you get a conviction, you want it to be upheld. Wouldn't it
have made more sense--we are giving you all this extra
authority, anyway--at the time when you were asking us for all
these things, but apparently not telling us that you were
thinking about military commissions, would it not have made
some wisdom to come here and say, look, why don't you put in
another section authorizing under--as has been done in the
past, giving us specific authorization for the President as
Commander-in-Chief to set up military commissions, thus
removing the legal debate now going on in this country about
whether you have the authorization to do so or not?
Mr. Chertoff. I think, Mr. Chairman, what I can say is that
from the administration's perspective, the issue of military
tribunals is a matter that comes under the jurisdiction of the
Department of Defense as an extension of the President's power
as Commander-in-Chief. I think to the extent the issue arose
about how to develop this proposal, it arose on the Defense
side of the house, so to speak. It is not normally something, I
think, that we would consider raising as part of a law
enforcement discussion relating to law enforcement powers.
Chairman Leahy. So it is those guys' fault, not yours.
Mr. Chertoff. I don't think that is what I am saying, Mr.
Chairman. I think what I am saying, these are separate and
distinct functions, and we want to have both of these functions
available to the President, recognizing that we intend to use
both and that both have to be available.
But I don't think it was ever our sense that we ought to
confuse the two or ought to try to bring the President's power
as Commander-in-Chief into the realm of his power as chief
executor of the domestic criminal laws.
Chairman Leahy. But, Mr. Chertoff, don't you feel that most
people see a big difference from--I mean, if you capture a
number of Al Qaeda members or Taliban or others are captured,
as have been by both the U.S. forces and those we have allied
ourselves with in Afghanistan, nobody thinks that our special
forces have to come in and before they grab somebody say I want
to read you your rights. I mean, that is not the situation. We
all understand that. We all understand that on the ground, in
the battlefields, there are particular standards that are
allowed by international law, by convention, and by just plain
good sense on the part of the commanders there. But when you
talk about bringing them back here and having these trials,
then you raise an entirely different question.
For example, were you surprised at what Spain said, having
grabbed a number of suspects that I think you and I would agree
we would like to see, we would like to talk with, people that
you and I would both agree are high on our list of suspects,
but now they say they would not extradite these suspects if
they are going to be tried before a military commission and
they would insist on a civilian proceeding? Did that reaction
surprise you at all?
Mr. Chertoff. Mr. Chairman, I think we all understand that
when we deal with the issue of extradition from foreign
countries, other countries sometimes lay down conditions which
we have to satisfy before we extradite people. We have had that
issue, for example, with respect to the death penalty, and it
sometimes, frankly, caused a certain amount of discomfort on
our side. So I think we are all well aware of that.
But I think, Mr. Chairman, I agree with your initial point.
What this order does is it gives the President the flexibility
to use all of his constitutional options when he is faced with
the issue of a terrorist. If we were in the battlefield, if
there is somebody caught in Afghanistan, the President should
have the option not to bring that terrorist back in the United
States and put them in a Federal court in New York or in
Washington and subject those cities to the danger of having
that trial. He should have the option to have those people
tried in the field for violations of the law of war.
At the same time, the order leaves it perfectly free for
the President to decide that, in order to accommodate
extradition requirements of other countries, that we will try
suspects in third-party countries in domestic Article III
courts.
So nothing that has happened forecloses our options in
terms of dealing with foreign governments or forecloses our
options in terms of dealing with terrorists in the field. To
the contrary, what the President has said is: I want to have
the full menu, constitutional menu in front of me so that I can
make a judgment based on all of these considerations, safety,
relations with other countries, about the appropriate way to
handle each individual case.
Chairman Leahy. My time is up.
Senator Hatch?
Senator Hatch. Well, thank you, Mr. Chairman.
Mr. Chairman, I am a little bit surprised at your surprise
regarding the President's issuance of the military tribunal
order because you asked the very pertinent question of the
Attorney General immediately after the September 25th hearing,
which dealt specifically with the issue of military tribunals.
In your question, which was fairly lengthy, you stated, ``Some
have suggested that those responsible for the attacks be
treated as war criminals and tried by military tribunals.''
In response to the question, the Attorney General pointed
to the Quirin case, reminding you that in that case, the
Supreme Court upheld the legality and constitutionality of
military tribunals. And although the Attorney General did not
commit at that time to creation of such tribunals, his answer
plainly indicated that such tribunals were under consideration.
And the Attorney General's responses are dated October 18.
Now, Mr. Chertoff, as you know, many of us on Capitol Hill,
including a number of Senators in this room, spent an
inordinate amount of time, a considerable amount of time and
effort last month to pass the USA PATRIOT anti-terrorism
legislation in an attempt to provide law enforcement with the
tools it needs to effectively fight terrorism. Now, one
criticism of the Department of Justice that I have read since
the passage of that bill is that the USA PATRIOT Act has been
of little help to the Department in the war against terrorism
and, thus, that we should be skeptical when the Department
again comes before us seeking additional powers.
Now, in your opening remarks, you briefly indicated that
the USA PATRIOT Act had, in fact, been helpful in the war
against terrorism. Could you give us a little better idea as to
how the USA PATRIOT Act has been of use to the Department in
the war against terrorism?
Mr. Chertoff. I would be delighted to do so, Senator,
because we, in fact, moved literally within hours after the
passage of the Act to start to implement it as part of our
attack on terrorism.
First and foremost, of course, we have used it to start the
process of sharing information between the intelligence side
and the law enforcement side, which has been indispensable to
satisfying our direction to protect the American people against
future acts of terrorism.
We have used, for example, new Section 2703 of Title 18 to
obtain information from a cable company that also provides
Internet services which we would not have been able to do under
prior law without a specific court order.
We have used it more efficiently to obtain certain
information via subpoena from Internet service providers. We
have obtained court orders directed to out-of-district Internet
service providers for logging information, which, again, has
provided us with enhanced efficiency in terms of pursuing this
investigation.
We have used the nationwide search warrant provision to
obtain relevant information. We have used the emergency
disclosure provisions to support our use of information that
was provided to us by an Internet service provider.
So these are some examples of the specific ways we have
actually deployed the new powers in the Act. In fact, I can
tell you personally, not more than a few days ago a request
came to me about whether we could get some information about
addresses on the Internet, and it was information that was
important that we might not have been able to get under the
prior law. But because of the new law, I was able to direct
people to go out and get an order and make sure we can get that
information.
So we have absolutely made use of these tools and intend to
continue to do so.
Senator Hatch. Thank you. I was particularly interested in
the portion of your remarks in which you addressed the topic of
those individuals who have been deterred in connection with the
investigation into the events of September 11th. You mentioned
an important fact that I think has gone unnoticed and
underreported in our country, and that is this: All individuals
being detained in connection with this investigation are
alleged to have violated either the immigration laws of the
United States, the criminal laws of the United States, or they
are being held pursuant to the order of a Federal judge as a
material witness to a crime.
Now, is that accurate?
Mr. Chertoff. That is accurate.
Senator Hatch. Could you speak at a little more length
about these detainees, the basis upon which they are being
held, and the procedural checks that are involved in the
process? Because some of the criticisms I think have been
unfounded, very unfair and have almost been hysterical. But the
questions are important, and your answers are even more
important.
Mr. Chertoff. Again, Senator, that is why I welcome the
opportunity to testify here and try to set the record straight
on some of these things.
First of all, we have the category of people--and they
number 55 at this point--who are in custody under Federal
criminal charges. They are treated like any other person
charged under the Federal criminal laws. They are presumed
innocent. They have a lawyer. They appear in open court. They
know the charges against them. In due course, they will come to
trial and, if convicted, they will be sentenced in accordance
with the law.
Then we have a number of people who are held pursuant to
material witness warrants for grand jury investigations. Again,
the law provides for that. They have the right to a lawyer.
They have the right to appear before a judge to have bond set
and to argue about whether they ought to be detained. So,
again, that is part of the ordinary process of the law.
Finally, with respect to the immigration side of the house,
there are people who are in custody, being detained pursuant to
immigration violations. And let's be clear. Those are people
who have essentially overstayed their welcome in this country.
They don't belong here. They are charged with either having
gotten here under false pretenses or having overstayed their
visa or in some other fashion violated the immigration laws,
which results in them being deportable.
And pursuant to the process that we have in INS, they go
before an immigration judge. That judges makes a determination
whether to keep them detained or not, and then it is reviewed,
again, in the normal course.
So nothing that we are doing differs from what we do in the
ordinary case or what we did before September 11th. And,
importantly, nobody is held incommunicado. We don't hold people
in secret, you know, cut off from lawyers, cut off from the
public, cut off from their family and friends. They have the
right to communicate with the outside world. We don't stop them
from doing it.
And I hope that by putting this in perspective I can dispel
some of the mystery that apparently has risen up in the press
about what is actually going on.
Senator Hatch. Well, thank you. My time is up.
Chairman Leahy. Thank you. Also, from just a housekeeping
way, we are going to follow the early-bird rule, going from
side to side. And on this side, the order of arrival, Senators
Kennedy, Feingold, Durbin, and Feinstein; Senator Hatch on your
side, Senators Specter, Sessions, Kyl, McConnell, and DeWine,
in that order.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much. Thank you very much
for being here responding to these questions.
I think at the start of these oversight hearings, we are
very mindful, all of us are, of the challenge that we are
facing with terrorism. There is no monopoly of concern in
trying to be effective in dealing with the problems of
terrorism. And many of us believe in a comment about the
effectiveness of the President in galvanizing not only a
coalition but looking at a multidimensional approach in trying
to deal with the terrorism. But we need, in this Committee that
has special responsibilities, to have the steps that are being
taken by our National Government, as you outlined, to be both
constitutional and effective. And that is why we want to work
with you and the administration to try and do that, not all
powers are here, but at least these are matters that we have
considerable interest in and have worked on.
I think it is against a background where we have seen this
country pass an alien and sedition law, and John Adams now who
was recently more acclaimed by David McCullough is the one that
signed the alien and sedition laws. We were facing challenges
at that time.
We see Abraham Lincoln, who is our most revered President,
move ahead and abolish habeas corpus at the time of the Civil
War. We saw the Palmer Raids after World War II, and we have
just gone through in more recent times the internment--the
review of the internment of the Japanese in World War II.
So we have seen many times when the Congress has had
hearings, saying we are facing this terror and we are taking
steps, and then we have looked back in terms of American
history about what this was about, and then we say we should
have taken some time and really thought these steps through.
Now we have seen in more recent times where, under our
chairman and Senator Hatch, we did the anti-terrorism bill,
which was worked out in a bipartisan way. And we have the
airport security after a period of time included in the anti-
terrorism legislation, with money laundering, which is
important, changes in the intelligence worked out in sort of a
bipartisan way, which the American people really had a sense
that they are participating in. And we are making, I think,
important progress in bioterrorism and also in trying to deal
with national security on the immigration. And we are working
that out with the Congress, and we want to work with you. It is
in that framework that I think many of these questions have
come and have to be raised.
Now, on the issues of the military courts, I am a member of
the Armed Services Committee and they gave us absolutely no
indication. We are going to hear in about this Armed Services,
so I don't want to put words in your mouth, but they had
indicated that they stated unequivocally that Defense
Department didn't request the authority. They didn't even
appear to have been consulted. That was my impression.
Secretary Rumsfeld will have a chance to answer. Maybe you
would want to make a comment in just a minute on this.
There are concerns that many of us have about the military
tribunals. Many of us, including bipartisans have been critical
of these military tribunals. We have been most particularly
critical when it has involved Americans in Peru. There we found
an American being tried, and the State Department, Republicans
and Democrats all talked about the failure of the military
courts in Peru intentionally for not meeting internationally
accepted standards of openness, fairness, and due process. We
have stated that military courts in Egypt do not even ensure
civilian defendants due process for an independent tribunal. We
have stated that military tribunals in the Sudan do not provide
procedural safeguards. We have criticized Burma, China,
Colombia, Malaysia, Nigeria, Russia, and Turkey on similar
grounds.
Yet now we are calling for the use of military tribunals.
The concern is: Aren't we doing exactly what we have criticized
other nations for doing? That would be one question. Let me
mention just three items.
The second is with regard to the monitoring of the
attorney-client communications. We have a process that is
already available for those that are being imprisoned that is
being utilized by the Justice Department and taking on the
tough issues, for example, in the Mafia and drug kingpins. And
we haven't had testimony that hasn't been effective, and we
have a process and procedure. And you have outlined a
completely new kind of way of dealing with it. And we are
asking ourselves, well, why don't you use the one that has been
tried and tested and has been effective? We didn't know that
that wasn't effective and wouldn't be just as effective in
dealing with the kinds of challenges that you are facing today.
It would have been interesting to know why you need the extra
kind of dimension when many of us feel and continue to feel
that the problems of the Mafia and drug kingpins enormously
important.
The final point I just want to mention deals with the
questioning of the Middle Eastern detainees and the massive
questions whether it is racial profiling or not racial
profiling. We have seen where our profiling technique failed us
abysmally with regard to the airlines. We were profiling the
wrong people. And that is--I won't take the time to do it.
And now we have the criticism of the former leaders in the
FBI that have had solid records of achievement and
accomplishment in dealing with the problems of terrorism, men
and women of distinguished careers and who are tough on these
issues who make the comments that they think are not only guts
the values of our society but is also extremely ineffective.
Could you--
Mr. Chertoff. Let me try, Senator.
Senator Kennedy. Fine. Thank you. I know I have given you a
lot, but--
Mr. Chertoff. I have taken notes, and I will try to deal
with each of these in turn. Let me not venture into the field
of what the Department of Defense will tell the Armed Services
Committee. I think that really falls within their jurisdiction.
On the issue of military commissions, I think we are aware
of the fact that there has been criticism of some tribunals
overseas. The fact of the matter is, whether you have a
civilian tribunal or military tribunal, it is possible to have
a fair one and it is possible to have an unfair one. It is not
how you characterize it. It is how you implement it.
This country does have a long tradition of using military
commissions, and using them fairly. I was surprised to learn,
as I did reading in this area, that the Nuremberg tribunal in
the post-war period in 1945 was actually a military commission
that was constituted under the laws of war. And I don't think
anybody doubts that that was a fair tribunal.
So the fact that you have a military commission does not
betoken any unfairness. To the contrary, I think the President
has made it abundantly clear he expects that the procedures
that will be written will require a full and fair hearing that
comports with reasonable standards of what fairness are. And I
think the Department of Defense is going to produce a set of
rules that comports with those standards the President has laid
down.
So I don't think that we need to be concerned that we are
doing something here that we are criticizing others for doing
merely because we are using the well-accepted constitutional
power to have a military commission. I think we have to have
confidence that the process of developing the rules will, in
fact, meet the President's directive.
Let me then turn briefly to the issue of attorney-client
monitoring, and, again, it is not a matter which I think we
undertake lightly, as indicated by the fact that there are only
16 inmates in the country who are even eligible for this. And
to my knowledge, nobody has at this point been subjected to
this new rule.
But we are dealing with individuals who are sworn enemies
of the United States, and I can tell you from my personal
experience doing organized crime cases, I know that we had
problems in the past with organized crime figures conducting
business from jail and even using lawyers to do that.
But in those instances, to be honest, the worst that
happened was they continued to conduct criminal activity, but
they didn't pose an actual threat to large numbers of
Americans. As bad as the Mafia is--and I take a back seat to no
one in that respect--they weren't about the business of
massacring hundreds of American citizens. So when we face that
threat, the question is: Can we take steps as part of our
management of the Federal prison system to make sure that
people are not abusing their power and their right with respect
to attorneys to communicate with the outside world, to initiate
or encourage terrorist attacks that can cause massive damage to
the United States?
What we have done, though, Senator, taking account of the
law in this area, is to put in steps that afford the maximum
amount of protection to the effective attorney-client
relationship while allowing us in these rare instances to
monitor in case there is information that relates to threats.
Nothing that comes through this monitoring process that is
privileged is going to be retained under the regulation.
Nothing that is privileged is going to be transmitted to
anybody outside of the monitor and team, and it cannot be used
by the prosecutors in the case. And we have experience using
these kinds of devices in other situations, so I think we are
confident we can make them work. And of course at the end of
the day, if someone is prosecuted, a judge is going to have the
opportunity to review whether in fact we have mishandled the
information.
Let me finally turn to the issue of the interviews of
detainees. Let me begin by saying, Senator, this is the least
intrusive type of investigative technique that one can imagine.
This is not rousting people. This is not detaining people. This
is not arresting people. This is approaching people and asking
them if they will respond to questions. So there is a minimal
intrusion involved here.
We have emphatically rejected ethnic profiling. What we
have looked to are characteristics like country of issuance of
passport, where someone has traveled, the manner in which they
have entered, the kind of visa they have come in on, and we
have refined it based upon our experience gathered over the
last several years in dealing with terrorists. And one measure
of how precisely we have wielded the scalpel is the fact that
we are talking about 5,000 people out of millions of people who
come in and out of the country every year. So we have been
careful in using this technique, and we have also been careful
to make this a voluntary process.
Finally, I did read the article in the ``Washington Post'',
and let me address it by saying this. I do not know where the
people who were interviewed, how they get an understanding of
what we are doing. But I can make it clear that we are
continuing to use the traditional techniques of investigation
including long-term undercover operations, wiretapping,
everything that we have been able to use in the past that has
produced results. But we have also decided to use additional
techniques, and one of the things we have done is we have
imposed upon ourselves the discipline of asking: Is this
investigation yielding fruit, or do we need to take the case
down and now try to bring charges against somebody?
Again, my experience in the past is that sometimes these
undercover operations or long-term wiretaps languish as the
investigators wait for manna to drop from heaven that is going
to be the smoking gun. We have to be disciplined enough to
recognize there is a cost involved in protracting
investigations, and we have to be disciplined enough to pull
the trigger when the time has come to bring the case down. So
that is what we are doing, we are using the old techniques, but
we are using new techniques too. And we are not foreclosing
things that have worked, but we are, again, creating the
broadest range of options in being effective in fighting
terrorism.
Senator Kennedy. My time is up. Thank you.
[The prepared statement of Senator Kennedy follows:]
Statement of Hon. Edward M. Kennedy, A U.S. Senator from the State of
Massachusetts
Two months ago, the United States was attacked by terrorists who
sought to disrupt our government and our way of life. They have failed.
Americans today are more united than ever in our commitment to win the
war on terrorism and protect the country for the future. An essential
part of meeting this challenge is protecting the ideals that America
stands for here at home and around the world.
Soon after the vicious attacks of September 11, Congress approved
strong bipartisan legislation authorizing the use of force against the
terrorists and those who harbor them. Congress also quickly enacted
legislation to provide aid to victims and their families, and to
rebuild Lower Manhattan. We enacted airport security legislation, and
an antiterrorism bill that gives law enforcement and intelligence
officials enhanced powers to investigate and prevent terrorism. I'm
optimistic that Congress will soon approve bipartisan legislation to
improve border security and to strengthen our defenses against
bioterrorism.
As these examples demonstrate, our system of constitutional
government has served us well in this time of crisis. Now is the time
to defend our Constitution--not to undermine it.
At today's hearing, and at the hearings that will follow, the
Committee will consider the policies and actions by the Administration
since September 11 that have raised serious questions about basic
liberties protected by the Constitution. Some of these policies may be
justified, but they are difficult to evaluate, because of the Justice
Department's failure to provide information requested by members of the
Committee.
Many of us have serious doubts about both the constitutionality and
the wisdom of the President's plan to establish military tribunals to
try foreign suspects apprehended within the United States or overseas.
The Constitution gives Congress the power to define and punish
``offences against the law of nations,'' and to create courts inferior
to the Supreme Court. Yet Congress has not expressly authorized the
kind of military commissions contemplated in the President's order.
Advocates of military tribunals have argued that foreign terrorist
suspects do not deserve the same constitutional safeguards--such as the
right to counsel, proof beyond a reasonable doubt, and appellate
review--that are given to U.S. citizens in normal criminal cases. These
safeguards, however, exist to identify the guilty and protect the
innocent. They are not luxuries to be dispensed with in times of
crisis. Just this year, the Supreme Court re-affirmed the principle
that non-citizens within our borders--whether lawful, unlawful,
temporary, or permanent--are entitled to the same fundamental
constitutional rights as U.S. citizens.
For many years, the United States has strongly criticized the use
of military tribunals in other countries. If we engage in such
practices now, it could undermine our position of authority in the
world, and limit our ability to extradite terrorist suspects
apprehended by our allies.
In recent years, Congress has expanded the jurisdiction of federal
courts to cover a wide range of terrorist offenses, and has implemented
innovative court procedures to protect government secrets.
International tribunals have been used effectively to try suspected
terrorists, in the tradition of Nuremberg, Yugoslavia, Rwanda, and the
Pan Am 103 bombing. The Administration has not adequately explained why
secret, ad hoc military tribunals should be used, instead of
established legal forums, either domestic or international, to bring
the perpetrators of the September 11th attacks to justice.
I am also deeply concerned about the decision of the Department of
Justice to monitor attorney-client communications. Detainees have long
had a constitutional right to speak with their attorneys on a
confidential basis. The Department's new policy allows monitoring to
take place without judicial supervision and without even a showing of
misconduct by the attorney involved. The Department bears a heavy
burden to explain why existing procedures for investigating crimes and
fraud by attorneys are inadequate, and why this unprecedented
obstruction of the right to counsel is constitutional.
Similarly, many questions have been raised about the 1200 people or
more who have been detained-since September 11. Few of these detainees
have been linked to terrorist activities. Last month, I joined other
members of the House and Senate Judiciary Committees in asking Attorney
General Ashcroft about the status of these detainees. We also asked for
a briefing. We have still not received a full accounting of everyone
who has been detained and why.
Finally, many of us are also concerned about the Administration's
decision to question 5,000 immigrants, almost all of whom are Middle
Eastern, who recently entered the country legally.
Unfortunately, the Department has failed to provide Congress with
sufficient information to perform its essential oversight role on each
of these significant issues. I hope that Administration officials will
be more forthcoming at these Committee hearings.
In a speech in 1987, Justice William Brennan observed that the
United States had repeatedly failed to preserve civil liberties during
times of national crisis--from the Alien and Sedition Acts of 1798, to
the internment of Japanese Americans during World War Il--only to later
realize ``remorsefully. . .that the abrogation of civil liberties was
unnecessary.'' As we face another crisis today, I am hopeful that we
can avoid the errors of the past. To do this, the Administration and
Congress must share information and work together, as we did in the
weeks immediately following the September 11th attacks, to
bring the terrorists to justice, to enhance our security, and to
preserve and protect our Constitution.
Chairman Leahy. Thank you. I would also note I will put in
the record--because Senator Hatch had mentioned my question to
the Attorney General on military commissions--actually in the
hearing record I ask specifically and directly whether the
President was considering this option, and the Attorney General
answers, it would be inappropriate and premature basically to
answer that. I will put that in the record, and of course,
everybody can draw whatever conclusion they want.
Chairman Leahy. Senator Specter.
STATEMENT HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Specter. Thank you.
There is no doubt that the atrocious, barbaric conduct of
the terrorists on September 11th require very, very strenuous
response by the United States, and there is a very heavy burden
on the Government today to do everything in its power to
prevent a recurrence and to protect this country and its
citizens from bioterrorism, and that is a very heavy
responsibility which I believe the Congress is facing up to
squarely with the very prompt enactment of the Resolution for
the Use of Force two days after September 11th, the
appropriation three days after September 11th of $40 billion,
and subsequent action in providing an antiterrorist bill.
The question arises as to the scope of what our response
will be and that is a matter which the Constitution gives to
the Congress, the exclusive authority to establish military
tribunals. Now, Congress has delegated some authority to the
President and it is cited in the President's Executive order,
and it provides that there shall be, this is the statutory
language, ``procedures to be prescribed by the President, which
shall so far as he considers practicable, apply the principles
of law and the rules of evidence generally recognized in the
trial of criminal cases in United States District Courts.''
So that is the President's authority to follow the regular
rules of evidence unless it is impracticable to do so. And that
is the issue which requires some analysis. It was surprising to
me that the Attorney General did not consult with any member of
this Committee. A year ago he sat on this side of the bar of
this Committee. We have your statement that it is necessary to
be aggressive and hard-nosed. I agree with you completely about
that. On this dias you have quite a number of former
prosecutors who have been charged with or perhaps complimented
as being aggressive and hard-nosed.
Where you have the Executive order providing skeletal
outline which authorizes conviction by a two-thirds vote of a
quorum, in military court martial if you have a sentence of 10
years or more, requires a three-quarters vote. If you have the
death penalty, it requires a unanimous verdict. And I do
believe that the kind of conduct we are calling for here calls
for the death penalty. There is no provision in the Executive
order for a judicial review. The traditional lines of going
into Federal Court have been eliminated with only review
provided by the President or by the Secretary of Defense. The
rules of evidence have been abrogated so that evidence may be
admitted and if it is considered to have probative value by a
reasonable person.
The sequence of proceedings under the detention line
provided that a rule was signed into effect on October 26th. It
went into effect on October 29th without any customary comment
period, and then it was published in the ``Federal Register''
on October 31st. And here again a question arises as to
consultation or at least notification of the Committee.
There is in the public media very substantial critical
comment by former FBI Director Bill Webster and other FBI
officials about the procedures which are being utilized, all of
which leads to the thought that these really are vital matters.
We want to be sure that no stone is left unturned, and that the
Department of Justice or the Department of Defense have every
tool available.
What I would like you to comment on is the sequence for the
detention order, as to whether the rules were followed as to a
comment period, and also as to the specifics on the Executive
order as to certain key points. In your statement you say that
the right to counsel is preserved. I would be interested to
have you show me that in the Executive order.
The Executive order has a provision that the regulation
shall provide as to the ``qualifications of attorneys.'' I
would be interested to see where in the Executive order there
is a right to counsel, and what you consider to be the area of
need, because if you can show it, I am going to back you up all
the way, but I would like to see what you consider to be the
area of need for the two-thirds vote; for the absence of
traditional judicial review; for the absence of proof beyond a
reasonable doubt, the customary standard which is omitted; and
the modification of the rules of evidence, as I have earlier
noted, in the context that the statutory delegation by the
Congress requires the customary rules of law and evidence as
are used in the District Court unless there is a showing that
it is impracticable, and that is what I would like to hear you
describe.
Mr. Chertoff. I would be happy to, Senator, and again, I
hope I will respond to all the issues you have raised, and of
course, if I miss something and you remind me, I will address
it.
First of all, let me say there is nothing about what the
President has done or the Attorney General has done that is in
any way, shape or form meant to suggest that Congress has been
in any way remiss in being a full partner in this war on
terrorism. Everybody is very mindful and appreciative of the
diligent and speedy work--
Senator Specter. How can you talk about full partnership
when nobody let us know that this Executive order was coming
down?
Mr. Chertoff. At the same time, Senator, there are
responsibilities which the President has as Commander-in-Chief,
which if I can address briefly, may help put this in context. I
think that the source of the President's power, as I understand
it, to authorize military commissions comes from Article II of
the Constitution. Interestingly, Congress itself recognized
this preexisting source of power when it passed Title 10 U.S.C.
Section 821, which embodies the Uniform Code of Military
Justice. That provision says in relevant part, because it
establishes courts martial, quote: ``The provisions of this
chapter conferring jurisdiction upon courts martial do not
deprive military commissions of concurrent jurisdiction with
respect to offenders or offenses that by statute or by the law
of war may be tried by military commissions.'' And when the
Supreme Court address that provision in the Madsen case at 343
U.S., the Court determined that the effect of this language was
to preserve for commissions the existing jurisdiction which
they had over such offenders and offenses based on the
preexisting practice under the laws of war.
So I think that Congress itself, when it passed what is now
codified in Section 821, recognized this inherent power of the
Commander-in-Chief, and it has been recognized not only in
international law but in our own practice literally since the
days of George Washington, who authorized a military commission
I think in the latter part of the 18th century to try Major
Andre for espionage.
So in terms of the source of this authority, I think it is
a constitutional source of authority.
Now, as far as the particular rules are concerned, I think
there I have to point out that we are, that the Department of
Defense is currently in the process of putting those rules
together, and I have no doubt that in drafting those rules, the
Department of Defense is going to be mindful of what Congress
has prescribed, of what their own practices have been, of what
the history has been with respect to the rules and--
Senator Specter. Is the Department of Justice involved with
the drafting of those rules?
Mr. Chertoff. The President has committed the
responsibility for drafting these rules in the first instance
to the Department of Defense.
Senator Specter. So the answer is no.
Mr. Chertoff. At this point the answer is the Department of
Defense is--
Senator Specter. It seems to me the Department of Justice
ought to be involved. Yours is the department which has the
traditional longstanding experience here.
Mr. Chertoff. Well, Senator, I can assure you that at any
point in time that the Secretary of Defense requests the
assistance of the Department of Justice, which he is of course
entitled to do under the President's order, the Department of
Justice will be more than happy to render any assistance that
we can.
But let me also point out the President's order sets forth
a minimum that has to be met, not a maximum. It is envisioned
that the skeleton which the President set forth in this initial
order is going to be fleshed out by the Department of Defense,
that they are going to address issues such as what the burden
of proof is going to be, precisely how the evidential rules
will be implemented. In fact, even the provision that talks
about conviction upon the concurrence of two-thirds of members
of the commission sets a minimum requirement. Nothing in this
precludes the Secretary of Defense from looking to traditional
practice including traditional practices in courts martial, and
determining that for certain types of punishment there should
be a higher level of unanimity.
So none of this is foreclosed. And I think, frankly,
Senator, one of the virtues of this hearing, and I envision
other hearings, is that it will provide a further fund of
information from which the people who are preparing the
regulations can draw as they finalize what they are going to
do. So this is merely a point of departure. This merely starts
the process, and I think in so doing, it is consistent with the
practice that Franklin Roosevelt used when he triggered the
similar power in the mid 1940s in the Quirin case. He merely
initiated the process with a bare-bones order, and then, as was
customary practice, the military officers fleshed out the
details and the actual procedures. So we are beginning the
process. The process is under way. It is not concluded, at
least as far as I understand it. And I think all of these
matters, I am confident, will be considered by the people who
are putting these rules together.
Senator Specter. Does that mean you are going to come back
and consult with us before anything is implemented?
Mr. Chertoff. Well, I am hesitant to speak for the
Department of Defense. I think they have the responsibility to
carry forward with this, and I think for me to speculate about
how they are going to do it or who they are going to consult
really takes me out of my area of jurisdiction.
Chairman Leahy. But the Senator from Pennsylvania raises a
valid point, that you are and you represent the chief law
enforcement agency of our Government and the one that has to
eventually determine whether things are done legally.
Mr. Chertoff. There is no doubt about that, and as the
President's order makes clear, the Secretary of Defense is
authorized to draw upon our expertise or anybody else's.
Senator Specter. Mr. Chertoff, I would hope you would not
wait for an invitation.
Mr. Chertoff. I think we are capable of making our voice
heard when necessary.
Senator Specter. Well, this Committee did not wait for an
invitation. We called for the hearings. We called you. Use your
telephones. Call them up. Tell them you need to be involved.
Tell them you have had a lot of experience as a tough hard-
nosed prosecutor. We know your background. We also know your
record for protecting constitutional rights.
Chairman Leahy. You do not have to mail us. I am having a
little difficult with my mail these days, but--
[Laughter.]
Mr. Chertoff. We can fax and e-mail as well.
Chairman Leahy. Yes. In fact, I am urging the terrorists to
fax their anthrax letters to me from now on. But you can assure
the Attorney General that this question will be asked, if not
by Senator Specter, but by others when he gets here.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you very much, Mr. Chairman. I want
to thank you very much for scheduling this series of hearings.
It is obviously an extremely important function of the
Committee to engage in oversight of the Department of Justice,
and it is particularly crucial now given the enormous effort
that the Department is making to investigate the horrific
attacks of September 11th, and also to prevent future acts of
terrorism in this country, and I do want to thank the ranking
member, Senator Hatch, for joining in the Chairman's request
that the Attorney General appear before this Committee.
I do thank you, Mr. Chertoff for being here, and appreciate
you coming. But I do think that the kinds of questions that are
being raised about the Department's conduct are best answered
by the person in charge, the Attorney General. I look forward
to his appearance before this Committee next week, and I urge
that that appearance be one where all members get a chance this
time to ask questions for a reasonable period of time, which is
not what happened when we considered, however briefly, the USA
PATRIOT Act.
As many of my colleagues have suggested in their questions
so far, there really are serious questions as to the
legitimacy, the effectiveness, and even the constitutionality
of several of the steps that the administration is carrying out
with regard to this investigation. The one thing that is clear
so far today is that this is a bipartisan feeling, that
consultation with Congress on some of the more controversial
matters has been woefully inadequate. This is particularly true
in the wake of the lightning speed with which we passed, over
my objection, the USA PATRIOT Act. I hope this hearing, and
those to follow, will, as others have said, encourage more
consultation, more discussion, and more cooperation with
Congress, and I also hope that these sessions will help us
educate the American people, and members of Congress, about
what is being done in their name and under the authority that
they have granted their Government. Only by working together
can we ensure the effective administration of justice and also
the protection of our most sacred civil liberties.
I would like to follow, Mr. Chertoff, with something that
Senator Hatch brought up. As you know, I and others have been
seeking information concerning the individuals who have been
detained during the investigation of the September 11th
attacks. I want to be clear. I do not necessarily object to
detentions, per se. I simply believe that the identities of the
detainees should be made public. Otherwise I do not how to
answer a couple of questions. How can we know whether they have
access to attorneys or have, in fact, been held incommunicado?
How do we assess whether the Government is acting appropriately
in detaining these individuals if we do not have any idea who
they are?
Thus far the Justice Department has refused to provide most
of the information I have requested, and I have not found the
justifications for not providing the information terribly
convincing. I continue to be deeply troubled by your refusal to
provide a full accounting of everyone who has been detained and
why. Yesterday, the Attorney General cited concerns for not
wanting to provide the Al Qaeda network with a list of their
members that we have in custody as a reason for not disclosing
the names of the detainees. But then he freely disclosed a
sampling of the names who have been charged with Federal
offenses. And I would add to that, that in fact the identities
of 104 people have now been released, who are charged with
Federal crimes. We requested this information in a letter dated
October 31, and we can now determine, in those cases, the
conditions of their confinement and whether they are being
represented by counsel. So I am pleased that you have released
this information. It is long overdue. But it does not seem
consistent with the other statements that the Attorney General
has made. We still do not know who is in custody for
immigration charges.
And although you say that no one is being held
incommunicado, we do know that Dr. Al-Hazmi from San Antonio
was held incommunicado for a week and a half. We are also aware
of a lawyer in New York who states it took over a month to
locate her client. He had been picked up and sent to New York
for questioning.
And so it is difficult for me to understand exactly where
the administration is coming from with these inconsistent
statements. I simply disagree with the Attorney General's
assertion that disclosing the identities of detainees will
bring them into disrepute. I think that just the opposite is
true. By failing to articulate who is being held and why, the
families, friends, co-workers, and neighbors of those detained
are simply left to believe the worst, that the detainee is
somehow linked to the September 11th attacks. By failing to say
who is believed to be a suspected terrorist and who is not, the
Justice Department tarnishes the reputation of all, including
those who have already been or later will be found innocent.
It is my understanding that the identities of people who
are in deportation proceedings are regularly made public. And
so what I would like to do in the remaining time is ask a
question about that and two other questions in the Kennedy
tradition, and then have you respond to all of them.
[Laughter.]
Senator Feingold. The first is with regard to the
detainees. The Attorney General has somehow suggested
repeatedly that the immigration laws prevent him from
disclosing the identities of the detainees. I would like to
know precisely the authority for this claim.
Second, I would like some clarification of the summary
numbers that the Attorney General provided yesterday. He
announced that 55 individuals are in custody on Federal charges
and 548 are being held on immigration charges, so that is a
total of 600. But there are reports in recent weeks of more
than 1,100 total detainees. We do know that some people have
been released, but are we to conclude that nearly 500 people
have been released recently, or are there people being held on
state and local charges that the Justice Department is not
taking responsibility for in these counts?
And finally, you have said that the questioning of 5,000
Arab and Muslim men is not an intrusive process, and the
Attorney General said yesterday that people should just
cooperate and not resist these questions. But I think you are
aware, especially given your own background, regardless of what
the Department says, that the communities involved perceive
this program as very intrusive and very frightening. I
understand that in fact you were involved with the New Jersey
State Legislature's efforts to address racial profiling
practices by New Jersey State Troopers, so you are well aware
of the importance and significance of this kind of a concern.
So two points there. What steps has the Justice Department
undertaken since September 11th to reach out to the Arab and
Muslim community in a way that would be less offensive and more
constructive, and confidence building for both parties? And
regardless of how justified and appropriate you believe this
program of interviews to be, are you concerned at all about
alienating the Arab-American and Muslim communities? Don't you
want to do whatever you can to cultivate good relations with
these communities in order to enhance the investigation and
help uncover and prevent future terrorist acts?
Thank you very much.
Mr. Chertoff. Senator, I would be happy to answer those
questions. Let me try to take them in turn.
With respect to the issue of disclosure of the names of the
detainees, I think to be clear--and I do not remember the exact
statement; I was not present when the Attorney General made his
statement to the press--but I think to be clear, I do not know
that there is a specific law that bars the disclosure of the
names. There are laws that allow us, in response to FOIA
requests, to voluntarily withhold the names, but I do think
there are two considerations which are pertinent here. One is
we really do not want to put out a list of people that we
categorize as people who we think might be terrorists as a
subset of people who are being held in INS detention.
And actually I think Senator Hatch reminded me that when we
deal with the issue of what we call Megan's Law in my own
state, which is people who have been convicted of sex offenses,
there is a great deal of sensitivity about keeping those
Megan's Law hearings closed precisely for the reason that if
someone has not been convicted of a crime we do not want to
publicly stigmatize them. So I think there is a legitimate
concern here not to label people against their will.
And in that regard, I think there is an important point
that has been missed by a lot of critics. Everybody who is in
detention as part of this 548 is absolutely free to publicize
their name through their family or through their lawyers. There
is nothing that stops them from saying, ``Hey, I am being held
in detention as part of this investigation.'' But they have the
right to make that decision, rather than us make that for them.
Second, as I think the Attorney General points out,
although it is true that people charged with Federal criminal
offenses do have their names by public, and that is required
not only by law but I think by the Constitution. Where we are
dealing with the area of immigration, putting out a list of
everybody that we have could be of aid and assistance to
terrorists who want to know what the progress of our
investigation is, where we are looking, have we picked someone
up, have we not picked someone up. I can tell you from
reviewing some of the materials that were seized when we did
searches of Al Qaeda members overseas some years back, they are
very sophisticated about our legal system. They actually have a
manual with lessons, and the lessons include saying, ``You
should keep track of where your brothers are in the criminal
justice system. You should be mindful of how the criminal
justice system works.''
So we are, I think, well advised, to the extent we can do
so consistent with the law, not to assist them in tracking what
the flow of our investigation is.
Let me now deal with the numbers. I think the numbers I
think are pretty straightforward. There are 548 people that are
in detention on immigration charges. There are 55 people who
are in detention on Federal criminal charges. Now there is
another number, 104, which relates to the total number of
criminal charges that have been filed as a consequence of this
investigation. The reason there is a difference is because 55
reflects those situations where we have apprehended the person,
so we unsealed the charge. If we have not actually taken the
person into custody on a criminal charge, the charge may be
sealed, and that is why there is a difference between the 104
and the 55.
Finally, there is a number of people that reflects people
being held on material witness warrants pursuant to a grand
jury investigation. We cannot publicize that number. That is
grand jury material that is covered by Rule 6(e).
The 1,100 number, which you made reference to, I think
reflects a running tally that was kept in the early weeks of
the investigation. It includes, in addition to INS detainees,
people under Federal criminal charge and material witnesses. It
also includes people who are held on state and local charges,
and it includes a great many people who were briefly detained,
questioned, released, and have now gone on their merry way
without any further interaction with law enforcement. So that
number does include a significant group of people that are no
longer being detained or held as part of the--
Senator Feingold. What is the breakdown of the different
categories?
Mr. Chertoff. Well, the problem I have is this: I cannot
give you the number relating to material witnesses on grand
jury because I am forbidden by law. I do not know the number of
people being held in state and local custody, because, frankly,
we do not track that. And so without those two numbers, I
cannot do the mathematics necessary to subtract from the 1,100.
Senator Feingold. Is it your assumption, though, that the
lion's share of that further category would be the state and
local detainees, or not?
Mr. Chertoff. I would hesitate, Senator, to speculate about
what the proportions are. I am sure there are some state and
local people who are being detained on those charges. I cannot
give you a number to that. I know there are some held on
material witness warrants. I know there are a significant
number of people who have been released. I think you made
reference to one individual in San Antonio who was held on a
material witness warrant and then ultimately released and went
public. So clearly there are people in that category.
I should also make clear, and I think the Attorney General
has said this on a number of occasions publicly, the 1,100
included pretty much anybody who was detained even for a brief
period of time. As you know, for constitutional purposes even a
15 or 20-minute detention constitutes a detention under the
Fourth Amendment. There are people who were stopped and may
have been questioned for an hour or two. They may have been let
go, and that was originally folded into that number. I think it
turns out at this point that is no longer a useful number, and
I think we have tried to furnish more precise numbers about
people who are really being held.
Finally, let me turn to the third point. As you noted,
Senator, I do have some personal experience with the issue of
racial profiling, and I think everybody was exquisitely
sensitive to the need not to do ethnic profiling, not to
communicate or to suggest that people of a particular religion
or people of a particular ethnic group are more prone to be
terrorists than others. That would not only be wrong but it
would be foolish because we would be deluding ourselves if we
thought that we can limit ourselves by looking at a particular
religious denomination.
On the other hand, we do know certain things about what the
terrorists themselves have chosen to do. We know that, for
example, bin Laden has chosen to recruit people from certain
countries or to train people in certain countries, or to
instruct people as to how to conduct themselves in terms of
what kinds of visas to get or how to make their way into the
countries which they have targeted. And we would be foolish not
to look at those criteria as a way of culling through the pool
of people who have come from overseas and deciding who might
have useful information. I want to be quite clear, we are not
in any way suggesting the people we are talking to are
suspected terrorists. They may be people who may have
encountered terrorists. They may know that. They may not know
that. They may not even be aware that they have useful
information. So we are trying to make it very clear that we are
not targeting people in a particular community.
I know that U.S. Attorneys have both on their own
initiative and under instruction reached out to members of the
Muslim community and other ethnic communities to make the point
that we are seeking their coordination, that we are not
profiling, that we are not questioning the loyalty of all of
the communities that make up America, that we understand they
also lost people in what happened in the World Trade Center,
and we are going to continue to do that, because I completely
agree we cannot win this fight if we do not enlist everybody,
all Americans, of whatever ethnic background, whatever race,
whatever religion in the struggle, and we are going to continue
to do that.
Senator Feingold. Mr. Chairman, thank you for all the time.
I would just add that one of the few advantages I can see in
all these changes being directed by the Executive, without
adequate consultation, is it may make the terrorist handbook
about how our system works obsolete.
Mr. Chertoff. I hope so.
Senator Feingold. Well, but that concerns me. That concerns
me. And I say that, obviously, with a concern that if we are
going to change our system in all these different ways without
adequate consultation or oversight by Congress, that the very
foundations of our system are threatened. People who are
detained have a right to be able to believe that they get to
operate based on the rules that we have traditionally followed
and not on a whole new set of rules. And I do have serious
concerns about the way this is being done, but I look forward
to a continuing process of trying to elicit the information and
work with you on this.
Mr. Chertoff. Thank you, Senator.
Chairman Leahy. In fact, I would agree that if the handbook
is being changed, it should be at our initiative and not at the
terrorists' initiative.
Again, for housekeeping, the next Senator in the order,
being Senator Sessions of Alabama, I would also note for
members and for the witness, when Senator Sessions finishes his
questioning and the witness finishes his answers, we will take
a 5-minute break so that Mr. Chertoff can stretch his legs and
everybody else can.
But, Senator Sessions, please go ahead, sir.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I think it is
appropriate that the Department of Justice come before this
Committee and explain what you are doing and why you are doing
it, and what legal basis you believe you have for the actions
that you have taken. There has been, as Senator Hatch noted, a
bit of hysteria I think in some of the criticism of the
Department, a real suggestion that things are going on that are
not going on, a suggestion that laws are being violated that I
do not think are being violated.
So I first would like to express to you, Mr. Chertoff, my
appreciation for your candid and very effective testimony that
I believe has rebutted already many of those charges that I
think are incorrect. This is a great country. We have great
affection and commitment to civil liberties, but we also are a
country that provides for realistic efforts against crime and
realistic efforts in a wartime situation.
Let me just ask you once more, and I would ask the other
members of the panel to think on this: in your view, Mr.
Chertoff, all the actions that have been taken by the
Department of Justice are within the Constitution and laws of
the United States and the laws of war recognized throughout the
world?
Mr. Chertoff. Absolutely, and I think they are consistent
with past practice when we have faced situations of comparable
emergency.
Senator Sessions. I think that is an important thing for
us. If somebody believes that we are violating the law, let us
say specifically what law is being violated and how it is that
it is being violated.
With regard to the military tribunals, that is a function
of the President's war powers; is that correct?
Mr. Chertoff. That is correct.
Senator Sessions. So it is really not a Department of
Justice, it is a military act primarily?
Mr. Chertoff. That is correct, Senator.
Senator Sessions. The question then is, I suppose, should
we provide the terrorists who are attacking the United States
more rights than the laws of the United States and the world
provide them? And that is a question of policy. I suspect we
will provide them, as we go forward through this process, more
rights than they would get in other nations throughout the
world, probably more rights than any other nation in the world
would give them under the same circumstances. So the question
really is: how much beyond what the legal requirements this
country puts on the Department of Justice should be applied?
I know Senator Specter is such a fine lawyer and asked you
some questions about the President's order, which I note is
denominated a military order with regard to the trial by
military tribunals, and on page 4, subsection (5), it says that
it provides for modes of proof, issuance of process,
qualifications of attorneys, which at a minimum should provide
for, paragraph 5, conduct of the prosecution by one or more
attorneys designated by the Secretary of Defense and conduct of
the defense by attorneys for the individual subject to this
order.
So it would appear to me, would it not, that the
President's order pretty clearly did provide for appointment of
counsel for the defense?
Mr. Chertoff. That is clear to me, Senator.
Senator Sessions. With regard to the attorney/client
communications, now as a Federal prosecutor myself for 15
years, I am aware that drug dealers and Mafia people have
utilized the freedom that we provide and the rights we provide
to actually conduct criminal operations from jail. You have
been a long-time Federal prosecutor. Is that not true?
Mr. Chertoff. Well, I actually convicted people of crimes
committed when they spent--during a period of time they were
mostly in jail, so it is certainly done all the time,
unfortunately.
Senator Sessions. Hypothetically, if you did not have the
kind of rule that the President has put here that provides at
least the potential to monitor communication between attorneys
and clients, if bin Laden were in jail and he had a friendly
attorney, he could actually conduct terrorist operations from a
Federal jail; is that not correct?
Mr. Chertoff. That is correct, Senator, and I point out
that it is not only in the case of an attorney who is willingly
helping, but even an attorney unwittingly could be used as a
tool for communicating.
Let me, if I can just take a moment to read from again the
manual. This is from Lesson 18. They actually have these things
in lessons. That instructs that if an indictment is issued and
the trial begins, the member has to pay attention to the
following rules. And it talks about taking advantage of visits
to communicate with brothers outside prison and exchange
information that may be helpful to them in their work outside
prison.
Senator Sessions. Wait a minute. This is bin Laden's
manual?
Mr. Chertoff. This is bin Laden's manual. This is what they
instruct their terrorists. This is a kind of teaching tool for
terrorism.
He says the importance of mastering the art of hiding
messages is self evident here. So they are trained specifically
in how to use the ability to communicate when they are in
prison in order to further the goals of the terrorist
organization, and woe until us if we do not learn the lessons
from what they are teaching.
Senator Sessions. Well, now you have said that you have
identified, what was it, how many thousand people in prison?
Mr. Chertoff. 158,000 approximately, I think.
Senator Sessions. And 16 individuals that might be subject
to this kind of supervision or monitoring; is that correct?
Mr. Chertoff. That is correct. And I should make it clear
that of the 16, 12 are terrorists and 4 are under these special
administrative measures for espionage.
Senator Sessions. And so I think--and to your knowledge,
none of that has occurred as of this date?
Mr. Chertoff. We have not, as of this date, actually
initiated any monitoring pursuant to this order.
Senator Sessions. Well, I would just say this. I think you
should be very careful not to overuse that privilege, but I
think it would be a colossal error of monumental proportions if
we were to allow a terrorist prisoner to be able to plan and
conduct and order and direct additional terrorist attacks
against people of the United States, when we have I think a
legitimate basis for monitoring that. So I think you should do
that. I hope it should not be abused, and I am glad to see that
you have so few of defendants being looked at in that regard.
Mr. Chairman, my time has expired. I thank the Chair. I
believe Mr. Chertoff's testimony has gone a great way to allay
the concerns that many have expressed.
I thank you for it. I thank you for what the Department of
Justice has done, the tireless effort, the many hours long days
that you have put in, and Attorney General Ashcroft has, and we
have not had an additional terrorist attack in this country to
our knowledge, and I am confident had you not moved
aggressively, that we may well have had additional Americans
dead, maimed and wounded in this country as a result of further
terrorist acts. I salute you and thank you for your efforts.
Mr. Chertoff. Thank you, Senator. And I would be remiss if
I did not make it clear this is really based on the fine work
of all the men and women of the Department of Justice,
including the FBI as well as state and local law enforcement
and the other agencies of the Federal Government who are
working tirelessly to defend this country.
Chairman Leahy. Thank you, Mr. Chertoff. When you do go
back to the Justice Department, you can assure them that while
it might have been doubtful before, you do have Senator
Sessions on your side in this regard.
[Laughter.]
Chairman Leahy. We will take a 5-minute recess, and then we
will go to Senator Durbin and Senator Kyl.
[Recess.]
Chairman Leahy. Mr. Chertoff, your birthday celebration
just never stops. [Laughter.]
I appreciate the one musician among us in not leading a
resounding chorus of happy birthday.
Senator Durbin, just so everybody knows, it will be Senator
Durbin, then Senator Kyl, Senator Feinstein, Senator McConnell,
and then Senator DeWine, Senator Grassley.
So, Senator Durbin, please go ahead.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thanks, Mr. Chairman.
Mr. Chertoff, thank you again for being here.
I think it is fairly well known across this country that
this Congress, since September 11th, has really made an
extraordinary effort to cooperate with the President and the
administration in this war on terrorism in so many different
ways, providing the President with the resources and the
authority with strong bipartisan votes.
I can tell you that the modestly titled USA PATRIOT Act was
a struggle for some, including myself, to try to find the right
balance between our constitutional responsibilities and our
responsibility to protect and defend this nation. And I thought
that after lengthy deliberation and refinement that we struck
that balance, that we found an appropriate way to give new
authority, appropriate authority to the Department of Justice
and the President to deal with terrorism. I voted for it.
Virtually all of my colleagues, but Senator Feingold, whom I
respect very much for his own views on the subject, felt the
same way. But it was a struggle. It was not easy.
And I think that is why you perhaps heard some frustration
and disappointment from the Judiciary Committee today about the
announcement concerning military commissions or military
tribunals, because it seems to us that this is a rather
significant departure from what we considered to be the opening
statement here of our cooperation between the Legislative and
Executive branch in dealing with terrorism. We felt that we had
been asked for and had given to the administration the tools
they needed to fight terrorism. And then, to the surprise of
many of us, came this new request for--perhaps not a request,
but an announcement about military tribunals and commissions.
Let me tell you three specific areas of concern that I have
on this issue. Number one. After the painstaking process which
we went through for the antiterrorism legislation, we arrived
at some very carefully worded definitions. The President's
order relative to military tribunals virtually starts anew when
it comes to many of these same terms. You have addressed your
testimony, as you should, to the whole question of terrorism.
The antiterrorism bill defines terrorism, goes through and
catalogs the Federal laws that will be characterized as
terrorism, an exhaustive list. And yet when we look at the
President's order, it is a much different approach as to what
will be considered terrorism when we are engaged in military
tribunals.
We also have a standard that is in the President's order.
It refers to a quote, ``reason to believe standard'', close
quote, and that is not defined and it is not a common term of
law so that you might be able to find precedent to explain what
it means. So for those of us who felt that the process resulted
in a good piece of legislation which we could support even with
some reluctance, but realizing we need it to protect America,
this new approach breaks new ground in definition on critical
areas. What is terrorism? What is the standard for the
President to convene a commission or tribunal?
Secondly, I had the good fortune to meet with now the U.S.
Attorney for the Northern District of Illinois, Patrick
Fitzgerald, who was a prosecutor in the Southern District of
New York against the Al Qaeda terrorists, and a very well
versed prosecutor on the subject. He talked to me about his
successful experience about prosecuting terrorists for the
embassy bombings and his involvement in the World Trade Center
bombing in 1993.
The reason I think back on that is that at that point in
time, facing the loss of American life from terrorism, we felt,
as a Government, that our courts and our laws were adequate to
the need to prosecute even those overseas who had been
extradited to the United States. And now we have a new
approach. Now, I will concede in a second that what happened on
September 11th was a much different magnitude. But if you could
please draw a distinction for me between what was clearly
adequate and successful in the past in prosecution that the
administration now believes is inadequate, even with the new
antiterrorism law.
The third point raised by Senator Leahy, and one that
troubles me is this. As a member of the Intelligence Committee
I know that probably the greatest successes we have had since
September 11th have not been reported. We have an exceptional
cooperation now from countries around the world in gathering
intelligence on terrorism. For the Spanish Government to
announce to us that they will not extradite terrorists who
could be of value to us in solving any of the mysteries or
disarming the cells or finding the sleepers in the United
States because of military tribunals and the death penalty,
raises serious questions in my mind as to whether or not we are
helping ourselves by adding a military tribunal into this mix.
I know that my time is coming to an end. As I mentioned to
you at the break, I am going to use the Kennedy approach here,
and just perhaps raise one other issue on detention. You have
said in your testimony, and I quote, ``Nobody is being denied
the right to an attorney.'' Now, Senator Feingold made the
point about the Saudi-born radiologist from San Antonio, Texas,
Dr. Albida Al-Hazmi--I hope I have not mispronounced his name--
who was arrested and detained after purchasing airline tickets.
I read the story about this doctor in the newspaper, and the
thing that struck me was not only what he went through but what
he said afterwards. Afterwards he said, ``I don't have any
anger towards the United States. I understand. This is a very
tough time, and I was ultimately released, and I think that
says something good about the United States and the fact that I
was able to return to my family and my community.'' And I think
it does too. He seemed to be a man with no chip on his
shoulder, no grudge, who went through a very harrowing
experience but came out of it in a positive way.
But to the specific issue of his right to an attorney, he
was held, according to the ``Washington Post'', incommunicado
for two weeks, was transferred to more than one detention
facility, each a significant distance from his home in San
Antonio, and it took his attorney six days to find him and to
have access to him. In your statement that no one is being
denied the right to an attorney, do you concede the fact that
even if Dr. Al-Hazmi had the right to an attorney, that the
circumstances under which he was held and detained and denied
access to an attorney, would raise serious doubts in the minds
of many in the legal community as to whether he truly had
access to an attorney when he needed it?
Mr. Chertoff. Let me try to deal with these questions in
turn. And first of all let me reiterate again nothing about
what the President has done with respect to invoking his power
regarding military commissions is in any sense a reflection of
anything less than great satisfaction with the steps Congress
has taken to enhance the law enforcement element of our
approach to terrorism.
But at the same time we have to recognize that there are--
our domestic law enforcement can only prosecute domestic
crimes. There is a separate category of crimes known as war
crimes. There is some overlap. We can do certain things. We can
prosecute certain types of acts both as domestic crimes and as
war crimes, but traditionally and under the Constitution, the
President has the choice as to which of those he wants to elect
under the circumstances.
And so let me address your first question in terms of what
is the standard that will be applied under the order in
determining whether someone will be prosecuted under a military
tribunal. The order lays out a series of elements which the
President would consider in making a decision, but certainly
one of those elements is that the person be triable by a
military commission for the type of offense that is
traditionally triable by a military commission. And that means
we are talking about people who can be tried for committing
crimes against the laws of war, meaning that the are enemy
belligerants who have engaged in or supported hostilities
against the United States through unlawful means, such as, for
example, the deliberate targeting of civilians or undefended
buildings, or by hiding in civilian populations and declining
to bear arms openly.
So there is in the law, over a long period of time, a
fairly well-accepted definition of what a violation of the law
of wars is.
Senator Durbin. I just ask this question. In the two
instances I mentioned, the 1993 World Trade Center bombing and
the embassy bombings in Africa, would both of those qualify
under that definition for trial by military tribunal?
Mr. Chertoff. I do not know whether the 1993 World Trade
Center would have done so, because I do not know whether one
could reasonably have said at that point that we were in a
state of armed conflict. It might very well be that the 1998
bombing would have put us in that state of armed conflict.
There is no doubt that now, as we sit here, we are certainly in
a state of armed conflict. And I do not mean to suggest that we
cannot prosecute these cases domestically under domestic laws
that we have had for some period of time and that have been
recently enacted, but there may be policy reasons in some
instances to choose the alternative approach of a military
commission.
And without in any sense suggesting the President is
limited, let me give you one example. If it were to turn out
that we apprehended 50 Al Qaeda terrorists in the field in
Afghanistan, the President might well wonder whether it made
sense from the standpoint of our national security to bring
those people back to the United States, put them in a courtroom
in New York or in Washington or in Alexandria and try them. I
think as we sit here now there is still a conflict going on in
a prisoner-of-war camp in Afghanistan, where some of the people
who have been apprehended apparently seized the camp and are
now trying to fight with the Northern Alliance. So plainly that
is an instance in which the President could well determine that
while we have jurisdiction to bring these people back and try
them domestically, it makes no sense to do so when we can also
try them for violation of the laws of war under the well-
accepted principle of military commissions.
So I am the last person to say that we cannot adequately
prosecute terrorists under our laws, but I am also quite ready
to say that while our legal system is terrific and can handle
these cases, it may not be the appropriate tool in every case,
and the Constitution gives the President the ability to use
other tools, and I think what he has done here is simply taken
all of those tools out of the constitutional cupboard, so to
speak, and now laid them on the table so that he has them all
available.
Let me deal with the issue of international cooperation. I
read the newspaper articles. I do not think there is anything
about what the President has announced that in any way, shape
or form interferes with our ability to have international
cooperation. Again, plainly, the President can consider, in
deciding whether he wants to invoke a military commission in an
individual case or the traditional Federal courts, whether that
is going to have an impact on our ability to extradite someone
from overseas, in much the same way as we often have to
consider whether we will forego the death penalty as a
condition of getting an extradition. So there is nothing about
this that in any way, shape or form interferes with our ability
to cooperate with our allies, and I must say, my understanding
is that the Spanish authorities have been quite cooperative
with us in this investigation. So I do not think, again, this
option forecloses international cooperation.
Let me finally deal with the issue of detention. I
completely agree that it is not acceptable to have a situation
where someone gets lost in the system for a few days and their
attorney cannot get in touch with them. I have to say prior to
September 11th we all know of instances where, through
accident, people wind up not being in contact with their
lawyers and a period of time may go by in which they really do
not have access to counsel. We try to correct those things.
Certainly it is not the policy, as I understand it, of the
Government to try to interfere with that communication. It may
very well be that in the time compression of the early parts of
this investigation, as people were moved around, there was some
slippage. But it is certainly not the policy to try to
interfere with that kind of communication. We want everybody to
have access to their lawyers and we want to play by the rules.
Senator Durbin. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman.
First of all, let me say that some of the questions that
have been asked today I think really have elucidated the
situation, and hopefully will answer a lot of the questions
that I have seen asked on various talk shows and so on. I think
every one of the questions, for example, that Senator Durbin
just asked were appropriate. I was curious about some of the
same things, and I think the information you have provided to
us is very useful to be able to answer legitimate questions
that have been asked.
But having said that, it also seems to me that we have to
put into context what the President has done here. We have
charged the President with the conduct of a war. The Congress
helped to give him certain tools that he asked for some of the
warriors in that fight, our intelligence officers, our law
enforcement officers and so on, just as we have tried to
provide the military support that our men and women in the
service have. But it seems to me that in some cases we should
provide the benefit of the doubt to the President here when he
tells us that he is going to act in a certain way with respect
to our enemies. We do not question his operational plans. We do
not know all of the facts and circumstances. I think healthy
skepticism is good. This Committee's tradition of healthy
skepticism has certainly helped to ensure that the United
States maintain its preeminent position in the world I applying
the rule of law.
But in view of the demonstrated evil of those who carried
out the attacks on Americans, and their absolute disregard for
any semblance of civilized behavior, and in view of the long
record of the United States in advancing the rule of law, not
just adhering to it in this country, but certainly being the
most liberal country in the world I think in ensuring every
conceivable right for the accused. And in view of the type of
situations that I think we are likely to find, especially
abroad where our military is going to be confronted with
situations and military tribunals would most likely be used, it
seems to me that the benefit of the doubt should go to the
President here.
And I am a little bit disturbed by the criticism implied by
some of the questions, not seeking information, as some of the
questions have, but almost implicitly a criticism that
regardless of the answer, there is going to continue to be
skepticism and doubt. And as a Senator concerned about the
safety of my citizen constituents, as well as upholding the
laws and the Constitution of the United States, as they protect
United States citizens, I am going to listen very carefully to
the answers of the questions, and I think will give the benefit
of the doubt to the President rather than inferring criticism
of the President's order even after the questions have been
answered.
Mr. Chertoff has very forthrightly answered all of the
questions he can. And he said there is certain grand jury
information he cannot provide, and there are some things he
does not know because it is a matter of local law enforcement.
But I think no one would question his forthrightness and the
completeness of his questions.
And so I think we have an obligation as Senators, not just
to question, not just to be devil's advocate--and by the way,
this gives devil's advocate I think a whole new meaning,
because we are questioning on behalf of people who, as I say,
have not followed civilized behavior themselves. But after we
have done that, I think we also have another obligation, and
that obligation is to do everything we can to support the
President, the Attorney General, the Secretary of Defense and
others, who are attempting to ensure the safety and security of
our citizen constituents.
And while I am on that, Mr. Chairman, if anyone here doubts
that terrorists use their ability to communicate through
counsel about future plans while they are in jail, I invite you
to conduct closed hearings on that subject. There is subject
matter which could be discussed in that regard.
And this raises another point. There are a lot of things
that, you know, a lot of folks really are not aware of unless
they serve on the Intelligence Committee or have had special
briefings about threats that have been invoked against
citizens, and that is another reason to give the President the
benefit of the doubt here. You know, he has access to a lot of
information that some of us are aware of, some of us are not,
but we should not infer that he has some kind of evil intent.
We should infer that his is an intention to protect the
citizens of this country. So I think that should be our
underlying assumption.
Finally, with regard to the death penalty, remember that
one of the--and there are a lot of European countries that will
not extradite because they have a rule against applying the
death penalty. We have the death penalty. It has been
enormously helpful, especially in the spy cases, where in order
to plea bargain for life, spies, ``A'', tell us a lot of
things, and ``B'' preclude the necessity of a trial which could
give a lot of information about sources and methods that we do
not want to give. So there are a lot of reasons for a lot of
these things that I think need to be discussed.
Just one question, Mr. Chertoff. There has been a
suggestion that there has to be a declaration, a formal
congressional declaration of war for the President to have the
authority that you have noted in here the Executive branch has,
to invoke military commissions. Is there any legal authority to
back up that proposition?
Mr. Chertoff. Senator, I think the law is actually clear
there does not need to be a formal declaration of war. Going
back to the so-called Prize cases, which were decided in 1862,
which dealt with President Lincoln's power to impose certain
restrictions and blockades at the beginning of the Civil War,
the Supreme Court noted that a conflict, quote, ``becomes a war
by its accidents, the number, power and organization of the
persons who originate and carry it on.'' And the Court has also
noted on other occasions that the President has the power to
take account of those factors and make a determination that we
are in a state of armed conflict.
In this instance, this is not a close call. I mean, we have
been the subject of an unprovoked wanton attack which was
designed to inflict maximum harm on American citizens. Unless
there be a doubt about whether it is an isolated instance or
whether those who are within our country who are terrorists
believe they are at war, let me again quote from the manual
here. This is the fourth less, where they define military bases
for the terrorists, for Al Qaeda. And the definition of a
military base to the terrorists is: these are apartments,
hiding places, command centers, in which secret operations are
executed against the enemy. These bases may be in cities, and
are then called homes or apartments. So, again, this is not my
language. This is the language of bin Laden and bin Laden's
henchmen.
They perceive their apartments as military bases. They call
us the enemy. Under these circumstances, we have not sought
war, but it has been thrust upon us, and it is for us to finish
it.
Senator Kyl. I thank you.
Thank you, Mr. Chairman.
Chairman Leahy. I would note, Mr. Chertoff, I just want to
make sure I understand, that terrorist manual you speak about
is the one that was discovered in 1998, 3 years ago--
Mr. Chertoff. That is correct.
Chairman Leahy. --in the American Embassy bombings in Kenya
and Tanzania. Well before September 11th, it was entered
publicly into the record in trials, and I would just note,
having already had that a matter of public knowledge, a matter
of knowledge of the Justice Department for years, something
that has been looked at to successfully stop a number terrorist
actions before they happen, you can understand my concern,
having had that all the way through, why you never asked for
these extra powers at the time when you were asking for
extraordinary powers in the Terrorism Act that this Committee
and the Senate gave you. That is why I am concerned.
You had this for 3 years. We have all seen it, everybody on
this Committee, it has been in the newspapers well before
September 11th. Every quote you made from it is accurate, but
it has all been in the papers. It has all been public. Our
concern is, having known all that, having known that before
September 11th, when your Department was charged with helping
for our security, having been known at times when, without
going into classified matters, when we have stopped terrorist
acts over the last several years, that is why we are a little
bit concerned. Nobody asked us during the time we were
negotiating the Terrorist Act.
Mr. Chertoff. Well, Mr. Chairman, I wish I could rewrite
history. We cannot, and I certainly do not want to engage in
any finger-pointing about things that might have been done. We
face what we face now. We certainly had about as brutal a wake-
up call as you can have, and I think it behooves us now to look
at everything, things that we recently discovered and things we
have had in hand for a long time, in reflecting on what we can
do to protect Americans within the Constitution.
Chairman Leahy. I am not taking from Senator Feinstein's
time. She has probably spent as much time and effort on this
whole subject as anybody on this Committee, and I yield to her.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman.
Mr. Chertoff, I would just like to add my view that I would
hope that in the future the administration would consult on
these matters, particularly with the chairman and the ranking
member. I think that is really important. I think one of the
problems that we have is not the military commission, because
most people understand why, if and when Osama bin Laden is
caught, that it might not be to the Nation's security interests
to have him tried in this country under our normal procedures.
I think people understand that, and I think they are supportive
of it.
I think one of the problems with this and that I want to
ask you about is its timing because Osama bin Laden is not
caught, major perpetrators are not caught. Those 19, of course,
are gone from the scene, but anyone else, in terms of a major
planner, is not caught. Yet the administration came forward
with this order, which by my reading is a very broad order, and
therefore causes a lot of concern as to who is this going to be
applied to.
Why did the administration not wait until the standard of
proof has been worked out, the details have been worked out,
the military campaign was more advanced and then announce this?
You must have some reason for announcing it at this point in
time, and I would like to ask what that reason is.
Mr. Chertoff. Let me see, Senator, if I can allay your
concern. As I understand the process, in order to invoke the
President's power under military commissions, at least as it
has been done based on the precedent in 1942, I guess it was,
the President had to issue an order setting this in motion and
delegating to the Department of Defense or, as was the case in
the past, to actually generals in the field the order to then
develop the appropriate procedures.
I suppose that the President could have issued the order
secretly and had the procedures developed. Perhaps some might
think that would have been a better approach, some might think
this was actually a better approach in that it put on the table
the fact that this process was going to begin. As to why it had
to happen now, though, I think that, frankly, we do not know
the course the war will take. I remember several weeks ago
there were predictions in the press this was going to be a very
arduous campaign, we were going to get bogged down in
Afghanistan. It has seemed more recently that things proceeded
perhaps more quickly than we anticipated. That may yet change.
I think it is understandable, again, that one would want,
at the earliest possible time, to begin the process of
developing the full set of options that you might need to
invoke should we encounter somebody that is a terrorist who has
both violated domestic law and violated the laws of war. By
publishing the order, what the President has, in fact, done is
surfaced it and put it out in public so that there can be
public debate about it, and of course this is while there is a
process underway of having the Department of Defense develop
the specific rules and procedures that will be implemented.
Let me finally say, in case I had not made it clear
earlier, we should not look at the fact that the Department of
Defense's involvement in this is somehow treating this as kind
of an inferior form of justice. There are very capable and
honorable lawyers at the Department of Defense who are working
on this, who are well versed in the laws of war, who we have
every reason to believe are going to be as dedicated to the
Constitution as lawyers in any other department and are going
to be attentive to the views of scholars and the views of
members of this Committee as anybody else.
So I think the process is going forward.
Senator Feinstein. If I understand you then, you are saying
the rationale for the timing of this was simply to give the
Defense Department the time it needs to work out the standards
of proof and other criteria under which the order would be
carried out; is that correct?
Mr. Chertoff. I do not know, Senator, that I want to
presume to articulate what the President was thinking. What I
was trying to express was I think what was achieved initially
in the order now. You needed to get the order out in order to
start this process.
Senator Feinstein. All right. Because let us say you have
500 to 600 people now being detained, of course, no one knows
who or how many or if any of those people will be subject to
this order, and in Section 2, where it defines individuals
subject to the order, it mentions the usual ``engaged in, aided
or abetted, harbored, et cetera, planned carried out,'' and
then the next section it says, ``It is in the interest of the
United States that such individual be subject to this order.''
What exactly does that mean and how many people under
detention at the present time do you have reason to believe
would be subject to this order?
Mr. Chertoff. Let me, Senator, direct your attention as
well to Section 4 because I think it is important to read the
order in its entirety.
As I understand the order, the order applies to people who
could be prosecuted in a military commission for a war crime.
That means, for example, that people who can be indicted for
immigration violations or false documentation are simply not
eligible under this order. They are not people who committed
war crimes, and therefore they will be dealt with if they have
committed domestic crimes in the ordinary way that people under
Article III are.
In order to be full within the scope of this order, you
would have to be someone who could be tried for committing
crimes against the laws of war; meaning being an enemy
belligerent who has engaged in or supported hostilities against
the United States. So that is a fairly high standard, I would
think, and it does not apply to people who are in custody for
garden-variety criminal offenses.
In terms of asking how many people are currently in custody
who could conceivably eligible for this order, I think I am
limited because I do not think I am in a position at this point
to identify the state of our investigation with respect to
particular individuals or to disclose whether there is anybody
we have identified that we have in custody that is someone that
we would consider to be an active terrorist who has violated
both domestic terrorism laws and the laws of war.
So I do not know that I can give you that, but I can tell
you that people who are found in the commission of garden-
variety crimes are not people who violated the laws of war, and
therefore by its terms would not fall under this order.
Senator Feinstein. Just one quick follow-up. Is it fair to
say that there are some now in detention that would be subject
to this order?
Mr. Chertoff. Senator, I do not feel that I can, at this
point in time, make a statement as to the status of anybody in
terms of whether we have a level of proof about their
activities that would rise to what you would need in order to
prosecute them for a war crime.
Senator Feinstein. Thank you.
Thanks, The Chairman.
Chairman Leahy. Perhaps the time to do this would be after
the Attorney General's testimony, but if there are issues that
should be addressed only in a closed session, and if the
Senator from California wants one, I am sure that the Senator
from Utah and I requested under the normal procedures this
Committee does.
Senator McConnell?
Senator McConnell. Thank you, Mr. Chairman. This has been a
very interesting hearing. I want to congratulate Mr. Chertoff
on an excellent presentation.
We have been talking about what kind of due process rights
we are going to provide to a universe of people who I believe,
am I not correct, are 100-percent noncitizens?
Mr. Chertoff. That is correct.
Senator McConnell. So this whole discussion is about a
universe of people who are not citizens of the United States,
and I think it is important to remember that.
Let us then confront a potentially perverse result that
could occur. An American serving in the United States Army in
this country could conceivably end up with fewer safeguards
because he would be subject to a military trial; would he not,
Mr. Chertoff?
Mr. Chertoff. My understanding is, yes, under the Uniform
Code of Military Justice.
Senator McConnell. Right. So you could have the perverse
result in which an American citizen who happened to be a member
of the U.S. military being tried in a military court, not a
military commission, such as we are talking about here, but a
military court having fewer sort of generally recognized due
process safeguards than a foreign terrorist captured either
here or overseas and brought here and tried, such as the
terrorists were tried after the 1993 World Trade Center
bombing; is that not correct?
Mr. Chertoff. Well, Senator, I am not an expert in military
justice. It is my understanding, although the system of rights
under the Uniform Code is different, it actually does afford
servicemen a considerable degree of protection in terms of
their rights. There are some differences. I would not want to,
though, suggest that it is an inferior form of justice. It is a
different form of justice.
Senator McConnell. But many would suggest that the reason
for having a military tribunal in the first place is that the
procedures are somewhat more efficient, shall we say, and
maybe--
Mr. Chertoff. There are protections, for example, for
handling classified evidence I think that are somewhat
different than--
Senator McConnell. Let me try again. Would it be correct to
assume that it is possible, under the scenario that seems to
have been suggested here this morning, that you could have a
foreign terrorist tried in a civilian trial in the United
States with a lesser standard of what is generally believed to
be due process than an American citizen serving in the U.S.
military here? For example, they do not get a jury trial.
Mr. Chertoff. Well, again, and I do not want to venture
into talking about the Uniform Code because I really do not
know very much about it, my understanding is in some
circumstances you do get a jury.
Senator McConnell. Let us assume that you do not get a jury
trial in the military--
Mr. Chertoff. Then that would be a--
Senator McConnell. Just assume that for the sake of
discussion. Would it not be safe then to conclude that an
American citizen in the military who has to go to trial without
a jury would have less sort of generally recognized due process
rights than a foreign terrorist brought to the United States
and tried in a regular civilian court?
Mr. Chertoff. I think, if one were to assume that is true,
then it would be the case that the terrorist would have an
additional--
Senator McConnell. Which is totally, let me suggest, is a
totally perverse potential result of what we are discussing
here this morning, completely absurd. It would be further
incentive to foreign agents to be sure they got caught here,
would it not?
Mr. Chertoff. Yes. I think there is no doubt that one thing
that this order operates to do is remove the assurance that a
terrorist might have that there is a safe haven. The last thing
we want to do is create the perverse incentive for terrorists
to feel they ought to come into this country, because then they
are home free, and get a higher measure of protection than they
would get if they are caught in the field.
Senator McConnell. Which leads me to my next question. In
effect, we would have the potential of a repeat of the O.J.
Simpson trial, complete with grandstanding by defense lawyers,
in a trial of Osama bin Laden or his henchmen, with the
potential to be set free. Because, let us just take a
hypothetical, let us assume that the case was about an anthrax
attack, that there was not a pristine, perfectly established
chain of custody for anthrax, you could have these people being
set free.
In fact, what I would like you to do is just sort of give
us a litany of things that could go wrong that would compromise
our effort to fight terrorism if such trials were held in a
U.S. civilian court, if you could just sort of give us a litany
of all of the things you can think of that could go wrong that
would compromise sources, methods, that allow us to conduct a
war on terrorism, hopefully, in an effective way.
Mr. Chertoff. Well, let me begin, Senator, by saying this.
I do not want to be taken as suggesting that I have any lack of
faith in the ability of our domestic criminal courts to trial
terrorist cases. I have to say that the history of this
Government in prosecuting terrorists in domestic courts has
been one of unmitigated success and one in which the judges
have done a superb job of managing the courtroom and not
compromising our concerns about security and our concerns about
classified information.
That being said, we are in a different situation, both as
to the scope of the challenge we face and as to the nature of
the challenge we face. There are certain considerations that in
the individual case could wisely counsel for the President not
to pursue the domestic criminal route. Certainly, for example,
we would not want to bring people into this country in
significant numbers to be present in American cities where they
pose a danger to the populace. It is a fact that in past cases
involving terrorists tried in this country, the judges have had
to be under guard, and some of that requirement for security--
Senator McConnell. And what about the jurors? What about
the threat to jurors?
Mr. Chertoff. Jurors as well, and that has persisted for a
period of time, even after the trials are over. It may not be
fair--
Senator McConnell. What about the reporters covering the
trial?
Mr. Chertoff. Well, I probably would not venture there with
the reporters.
Senator McConnell. And the judge.
Mr. Chertoff. But the judges, there are judges who are
still under protection as a consequence of that. So, plainly,
the President could consider those factors.
It is the case that up to now we have been successful in
dealing with classified information, but clearly in the current
environment, we may have some situations where there are
individuals that we need to prosecute, where a large bulk of
the information is classified, and we would not want to be in
the position that we are in the domestic courts of having to
drop the case because we cannot sacrifice confidentiality.
And there may be technical problems, in some instances,
given the far-flung nature of the investigation and the fact
that we are accumulating evidence on the ground, presumably, in
Afghanistan, where the need to have somewhat more streamlined
procedures would commend itself to the President.
I also want to be careful not to suggest that our domestic
courts are incapable of doing these cases.
Senator McConnell. I am not suggesting that you are
suggesting that, but it is a practical result of this, would it
not be the case, that jurors who were called could possibly
look forward to having to have security for the rest of their
lives.
Mr. Chertoff. I do not know that we have had a case where
the jurors have had to have security for the rest of their
lives.
Senator McConnell. But they might desire it as a condition
for even participating.
Mr. Chertoff. I think there can be concerns in some
instances about juror security, judge security, security of
witnesses, and that is certainly an important consideration.
Senator McConnell. Obviously, some of these things are on
the mind of the President or he would not have suggested that
we wanted to have this option in the first place.
Mr. Chertoff. I think that is quite true.
Senator McConnell. Thank you, Mr. Chertoff.
Chairman Leahy. Thank you.
Senator Kohl?
Senator Kohl. Thank you, Mr. Chairman.
Mr. Chertoff, since the events of September 11th, the
President and the Justice Department have commanded the trust
and the support of the American people and the Congress more
than ever as they prosecute the war on terrorism, and we are
proud to provide that support. However, with that trust comes,
as you know, responsibility. The fabric of our society is built
upon the rule of law, and the expectation that our civil
liberties will be protected as much as possible, even in
extreme situations.
When changes are made to our laws in the name of security
or terrorism or war, in an effort to safeguard Americans, we
are understanding, and yet we deserve to be told how these
changes are being made and why. This does not indicate a lack
of trust or patriotism; rather, it demonstrates the strength
and the vitality of our democracy.
With regard to the use of military tribunals, the curbs
placed on the attorney-client privilege, and the detention of
hundreds of people, we are suggesting to the administration to
do the rule of law a great favor and prevent a clearer picture
of what this all about; explain to us why all of these hundreds
of people need to be detained and who they are; tell us your
reasoning for the changes to the attorney-client privilege and
what you hope to get from it; and detail for us who will likely
be prosecuted in military tribunals and what the rules
governing these trials are going to be.
We trust the administration when they tell us that these
measures will be used only infrequently. Nevertheless, it is
our responsibility to verify that when they are used, it is for
good cause and as fairly as possible.
It causes a great deal of consternation in our country when
we hear that Americans abroad will be subject to foreign
military courts. We worry whether the Americans on trial will
be afforded an attorney, an impartial jury and a fair chance to
defend themselves. Just, for example, take the case of American
Laurie Berenson, accused of treason in Peru back in 1996.
We were justifiably angry when she was secretly convicted
before hidden judges in Peru's supreme military justice
commission, without any explanation of the verdict. Americans
were upset that she did not receive a public trial, and
therefore questioned the legitimacy of the verdict. When Peru
relented in the year 2000 and agreed to hold a public trial,
our State Department was vocal in support of the open and the
fair proceeding, even though she was convicted a second time.
So the same holds true when are the ones holding the secret
trials. It demonstrates uncertainty about the strength of our
democracy to try suspected terrorists without the same
protections we want for our own citizens abroad. William Safire
wrote in the New York Times this week that, in its present
form, the military tribunal ``cedes to other nations overseas
the high moral and legal ground long held by U.S. justice, and
on what leg,'' he says, ``the U.S. does now stand when China
sentences an American to death after a military trial, devoid
of counsel chosen by the defendant.''
These, I believe, are fair concerns and ones that need to
be addressed, and we are suggesting to the administration that
it is not too late to provide these answers.
Mr. Chertoff, would you please respond to the idea that the
perception, both at home and abroad, with regard to our
dedication to the rule of law and our judicial system, is
tarnished. How would you suggest we correct that without ceding
the moral high ground held by our justice system?
Mr. Chertoff. Well, Senator, I reject the notion that our
moral high ground has been tarnished. I think, again, I begin
with the fact that what the President has done is, as I said
earlier, opened the constitutional cupboard and taken out his
traditional constitutional power to authorize military
commissions, and he has taken the first step in that direction,
and he has directed the Secretary of Defense now to devise
principles and rules that will, in the words of his order,
provide for a full and fair trial.
Now we have not seen those yet. They are in the works. To
presume, somehow, that the Department of Defense and the
lawyers there are going to come up with a kangaroo court
procedure I think is to do them an injustice, and still less
would I presume the President would countenance that. He has
made it very clear he wants to have a full and fair trial.
The presumption that we are going to hold secret, hidden
commissions I think is an unfounded assumption. The order
specifies that the rules are to be developed, paying due regard
to the need to protect classified information, but I do not
read in the order some mandate that everything has to be done
in secret. I think, in fact, the President's counsel indicated
publicly, shortly after the order was issued, that there was a
general desire to be open, consistent with the needs of
security and classified information.
So that I think to presume the worst, and to assume that
the procedures that will be written will be unfair or create a
drumhead court martial is to do a disservice, frankly, to the
men and women of the Department of Defense who are in the
process of writing rules. If, when the rules are written there
are matters to be criticized, I am sure there will be ample
time to criticize them, but I think that the President has made
it clear that what he wants is a full and fair trial. He has
made a specific indication that he wants there to be defense
counsel present.
And we have a history of dealing with military commissions,
under Article II, that is faithful to the Constitution and
faithful to our values. Absent evidence to the contrary, I see
no reason for anybody in any part of the world to assume we are
going to depart from that.
Senator Kohl. Well, I would like to hope that what you say
is, in fact, going to pass, and I will assume it is. I believe
that in hearings such as this, and the things that have been
written in the press, the concerns that people have expressed
about what these military tribunals will, in fact, be and how
they will occur, has an effect on you.
So that as you go forward and implement this, you will take
into consideration, I am assuming, and I believe, the full
concerns of people in this country, whether they be from the
left or the right, about our civil liberties and how precious
they are to us.
Mr. Chertoff. Senator, let me say I am sure everybody's
concerns will be taken into account. As Thomas Jefferson said
in his inaugural, ``In this, you know, we are neither of one
party nor another, we are all Americans,'' and I think that is
our spirit.
Senator Kohl. I thank you.
I thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kohl.
Senator DeWine has been waiting very, very patiently.
Senator DeWine. Well, and Mr. Chertoff has been very
patient. We thank you, sir, very much for your good testimony
this morning. I am going to say you have given us a lot to
think about, and I am going to think about it.
Let me ask, you have gone through and cited some historical
precedent for the President's order in regard to the military
tribunals. What is the best historical precedent? What is the
closest?
Mr. Chertoff. Well, I think the closest in time is probably
the Quirin case, which is the trial of the saboteurs in I think
1942, which was initiated by the President, pursuant to his
residual power to create military commissions.
But I was also interested to learn, when I was reading in
this area that, for example, the Nuremberg tribunal was a
military commission that was initiated by the four powers who
were the principal combatants in the war on the victorious
side. Likewise, there were military commissions that followed
the main trial in Nuremberg that everybody knows about that
tried hundreds of other Nazis for war crimes, and there were
acquittals in that case and all kinds of different verdicts.
So those are the most recent in time. They go back through
the Civil War, even onto the trial of Major Andre at George
Washington's direction.
Senator DeWine. President Roosevelt's proclamation, though,
was certainly more limited than this; is that--
Mr. Chertoff. Actually, I believe the proclamation, in many
respects, is virtually identical to this. This obviously is
broader in the sense that it is not directed just at a single
group of saboteurs, but it is directed more generally at a
potentially larger class of people.
One thing I should point out, Senator--
Senator DeWine. Say that again.
Mr. Chertoff. I say, unlike the Quirin order, which was
directed at a particular set of saboteurs, this does not have a
specific identifiable set of defendants. This defines a class
of defendants.
Senator DeWine. So it is broad.
Mr. Chertoff. It is broader in application.
I should point out, Senator, though, and I think it may be
unclear, that it is consistent with the language that President
Roosevelt used in Quirin to the effect that, as interpreted by
the Supreme Court in that case, any application of this in the
United States would be subject to habeas review by the Federal
courts.
Senator DeWine. Do you want to tell us how your local task
forces are working out. These are the task force, the idea of
putting obviously local law enforcement, and I am familiar with
this by talking to U.S. attorneys in Ohio, but--
Mr. Chertoff. We have had a history, Senator, as you know,
going back some years in the creation of what we call joint
terrorism task forces, and I think there were approximately 20
prior to September 11th, and they were efforts to really bring
together Federal, State and local law enforcement in a task
force concept to deal with terrorism.
After September 11th, shortly thereafter, the Attorney
General directed that every U.S. Attorney's Office create a
task force, if there was not one in existence already, which
would bring together State and local officials with the U.S.
attorney and the FBI to work together on formulating a plan to
combat terrorism, and that is useful in a number of respects.
It is useful in terms of communication of information from us
to people in the various States; it is useful in terms of
developing information from the field that can be sent back up
to our terrorism prosecutors and investigators in Washington;
and it is useful in coordinating an antiterrorism program in
each district.
These are comparatively new. I think they are working very
well. Part of what we are trying to do, and the Attorney
General has been very emphatic about that, is to open the doors
to State and local law enforcement. We realize this is a team
effort. Some of our most productive cases in the terrorism area
have been generated because of leads and tips generated by
local law enforcement. So this effort is designed to encourage
that, to make our cooperation more seamless, and to make our
protection of the public more efficient.
Senator DeWine. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman. Thank you for
holding these hearings and letting us air some of these issues
which are really important.
I want to thank you, Mr. Chertoff, for being here and for
serving your Government as well as you have for many, many
years.
I would like to ask a couple of questions about the
tribunals. As you know, they have brought up a lot of concern.
I have not made up my mind where to go on these. I think there
is a need for secrecy. I think those who say we should just
have a regular trial, as if was someone who held up a candy
store, that does not make much sense. On the other hand, I do
think that when you are dealing with issues like this, in terms
of due process and everything, secrecy, right to counsel, there
ought to be discussion. It ought not just to come down after--
there may have been elaborate discussion within the
administration about this. I do not know, but we do not have
the benefit of that discussion. It just sort of comes down, and
I am getting lots of questions on it. I think lots of us are.
So I guess my first question really is this: Most of this,
as you said earlier, I saw a little bit of it, came out of DOD.
Has DOJ been involved in any discussions with DOD or were you
involved in any discussions with the Department of Defense
before Attorney General Ashcroft talked about this and made it
public?
Mr. Chertoff. I think, actually, Senator, the President
issued it, and I think when he issued the order, he directed
the Department of Defense to put together the rules that would
actually be used to implement the order, and that process, as I
understand it, is underway in the Department of Defense now.
My understanding is that, prior to the issuance of the
Order, the President did consult with senior officials from a
number of departments, including the Department of Justice, so
there was some consultation.
Senator Schumer. Was it extensive? I mean, did DOJ have
different views than DOD on this?
Mr. Chertoff. I am not in a position to characterize the
discussions as being extensive or not, and I do not think it is
appropriate for me to communicate what the particular advice
might have been from senior officials to the President on a
matter of presidential decision-making.
Senator Schumer. Then let me ask you now, now that the
rules are being formulated, have there been discussions with
the Department of Justice? I mean, you folks are the experts on
trials. I understand there has been a system of military
justice for a long time, but these are sort of hybrid. That is
the whole reason we are not just saying court martial or some
other form that way. Has there been any discussion at all, to
your knowledge? Has DOD or people in the White House who were
involved in this reached out to DOJ and asked for your input?
Mr. Chertoff. Again, I am limited by own knowledge. My
understanding is that the President directed the Department of
Defense to put these together, but also the order makes clear
that the Department of Defense has the ability to call upon
other departments, including obviously the Department of
Justice, for assistance and advice in terms of this process. To
my knowledge, that has not happened yet. Obviously, at such
time as there is a request made for us to participate or to
assist the Department of Justice, like any other department, we
will be more than happy to participate.
Senator Schumer. That has not happened yet.
Mr. Chertoff. To my knowledge, that is correct.
Senator Schumer. Do you think you would be helpful?
Mr. Chertoff. I think that everybody in the Government will
do everything they can to help with this process.
Senator Schumer. How about on this, do you know if there
was any consultation, when the President issued the tribunal
executive order, was there consultation with your Department on
whether there was a need for an express authorization by
Congress to do this?
Mr. Chertoff. Again, I am not in a position, both because
of lack of knowledge and also because I do not want to get into
confidential advice given to the President by his principal
officers.
There was consultation with the Department of Justice, but
I think the details are something I am not in a position to get
into.
Senator Schumer. Let me then ask you a judgment question
from your many years in various places in the Justice
Department. I thought that the outcome of the antiterrorism
debate on the antiterrorism bill was a good one. I thought
there was give-and-take. There was public vetting. There was no
attempt by those who did not completely agree with the initial
proposal by the administration to be dilatory, but rather to
make some changes, and I was sort of in the middle. There were
some places where I was closer to the Attorney General and the
Justice Department, there were some places where I was closer
to our chairman and others.
But one thing I am convinced of, that having a debate,
having a discussion produced not only a better product, but
something that was regarded as more legitimate, something that
created greater consensus, something that not only people in
this country, although that is first and foremost, but even
people around the world could say this worked out pretty well,
and the ultimate product to me was a good one. I did not vote
for it reluctantly. I thought it was a good product.
Why would that not be a better process, in terms of some of
the things we are discussing here, particularly the tribunals?
Would it not be better for the administration to bring a
proposal before Congress, to not have Senators Leahy and Hatch
have to make the request, make the request, for this to happen?
We are going to have other needs and other changes. We,
certainly, if I had to pick a word, it would be
``recalibration,'' we do have to recalibrate, in every aspect
of American life and in this one, too, where you balance
liberty and security.
Why is it not better to vet these things through a
discussion process that we usually have through the Congress,
rather than just issue fiats for the sake of a better product,
for the sake of legitimacy, for the sake of the constitutional
checks and balances which have seemed to serve us so well for
these 200-some-odd years?
Mr. Chertoff. Senator, I think all I can say is, again, the
President's order is the process by which he initiates the use
of this time-tested constitutional power. It, by its very
terms, it is not the end of the process; it is the beginning of
the process, and it directs the Department of Defense to take
the responsibility to now flesh it out.
I am confident that the people who are doing this are going
to be receptive and interested in all of the relevant
information, all of the relevant considerations in putting this
together. Of course, the Department of Defense also appears
before Congress and has interaction with Congress as well. So I
do not want to presume to predict exactly the way in which the
Department of Defense is going to go about doing its business,
but I think that, again, we have seen what the President has
done has been to initiate this process, to authorize it to be
taken underway, but it is not a completed process yet.
Senator Schumer. So you believe there will be more
consultation than say there was up to now?
Mr. Chertoff. I do not know that I am in a position to
speak for the Department of Defense. I can tell you where the
situation is now. The Department of Defense obviously interacts
with Congress as well, but it is a matter that has properly
been committed to their discretion because, after all, we are
dealing with a power that the President is exercising that
comes from his status as Command-in-Chief and not his status as
head of the law-enforcement function.
Senator Schumer. Although I would say some of these areas
do shade into both. I mean, you have talked with some others,
not just on the tribunal issue, but on others, where they are
law-enforcement functions, and there seems to have been the
same sort of ``We will figure it out quietly behind the
current, and then we will issue something.''
I would just urge greater consultation with us for the good
of the country and for the good of the product.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Schumer.
In fact, I could not help but note, Mr. Chertoff, when you
say that there is nothing in the President's order that the
military commission be held in secret, I would disagree. It
gives the Secretary of Defense the authority to keep the
proceedings secret if he wants. The Justice Department is
briefed by saying the proceedings may be completely secret,
even with no notification to Congress. I believe it was in the
New York Times, where a military official as quoted as saying,
``The proceedings may be kept from the public view for years,
even decades.''
I mean, it is the kind of things, your own Department's
briefings to us, the way it is worded, these are the reasons
why there has been concern about the secrecy aspect. Whether
the secrecy is a good idea tactically or not, the fact is that
most people here feel that that is a plan that they may be kept
secret and may be kept secret, as they have said, even for
decades.
Mr. Chertoff. Mr. Chairman, again, I can only rely upon the
text of the order. The order plainly directs the Secretary to
consider the conduct, closure of an access to proceedings in a
manner consistent with the protection of classified
information. But as I observed earlier, I think the President's
counsel has indicated a general preference to be as open as one
can, given the exigencies of the circumstances.
Chairman Leahy. You should talk to those who speak about it
being decades and also talk to those in your own Department who
say it could be kept in secret for a long, long, long time.
Senator Hatch, did you have anything further or should we
go to the next panel?
Senator Hatch. I think we should go to the next panel
because we have got a number of very important witnesses. I
just want to compliment you, Mr. Chertoff. I do not think
anybody could have been any more straightforward and articulate
about these issues than you. I believe that we are very
fortunate to have you in the position that you are in. I just
want to compliment you for all of the hard, difficult and good
work that you have done. It has meant alot to me, and I think
it means a lot to our country. Thank you so much.
Mr. Chertoff. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. You can go have your birthday lunch now.
Mr. Chertoff. I will. Thank you very much.
Chairman Leahy. Thank you for coming.
Just so we understand, all members understand, please, give
to either Senator Hatch or myself, any follow-up questions
which will be delivered to Mr. Chertoff by the end of business
today, and we would ask you to respond to those by the end of
the week, so that we can have them in hand and prepared prior
to Attorney General Ashcroft next week.
Mr. Chertoff. I will do that.
Chairman Leahy. I thank you.
Mr. Chertoff. Thank you, Mr. Chairman.
Senator Specter. Mr. Chairman?
Chairman Leahy. Yes.
Senator Specter. I was asked if I wanted to have a second
round, and I said yes.
Chairman Leahy. Oh, I had asked the ranking member if he
wanted further.
Senator Hatch. If I could, I really believe that we need to
get to that next panel. I know that they are pressured on their
time. That is one reason why, you know, I do not make the
determination, but I suggested that we should move to the
second panel.
Senator Specter. Well, the second round is 5 minutes.
Chairman Leahy. If the Senator from Pennsylvania wants 5
minutes, it is fine with the chairman.
Senator Specter. Yes.
Chairman Leahy. Go ahead, but let us see if we can keep it
5 minutes.
Senator Specter. Mr. Chertoff, as a follow-up to the
questions that I had posed earlier, you have said that the
President is relying on his Article II powers in the
promulgation of the executive order, and he does refer to the
authority, as Commander-in-Chief, which obviously is a very
generalized authority.
The Congressional Research Service, which has done
extensive research on this question, comes down flatly with the
statement that the Constitution empowers the Congress to
establish courts with exclusive jurisdiction over military
offenses, and cites as the authority Clause 14 of Section 8 of
Article I, which says that ``the Congress has the power to
declare war, grant letters of marque and reprisal and make
rules concerning captures on land and water.''
And there is the express grant of authority for Congress to
make the rules concerning captures on land and water, which
would certainly encompass everybody in the military tribunal.
In the President's executive order, he then cites specific
statutory authority, which I quoted earlier, saying that unless
impractical, the rules in the United States District Courts, as
to evidence and law shall apply.
Now, as a matter of constitutional interpretation, you say
that the generalized authority as Commander-in-Chief gives the
President the authority over the Congress on this issue in the
light of the specific authorization of Article I, 8, 14?
Mr. Chertoff. Actually, Senator, what I think I am saying
is that we do not need to get there. Because, as I understand
Section 8-21 of Title 10, Congress chose not to occupy the
field, so to speak, and create exclusive jurisdiction, whether
it could do so or not is a matter I understand has been debated
by various people.
Senator Specter. Where do you derive the conclusion that
Congress chose not to occupy the field?
Mr. Chertoff. Section 8-21 is entitled, ``Jurisdiction of
Court Martial Not Exclusive,'' and says, ``The provisions of
this chapter conferring jurisdiction upon court martial do not
deprive military commissions, ellipsis, of concurrent
jurisdiction with respect to offenders or offenses that by
statute or by the law of war may be tried by military
commissions.''
Now that provision was addressed by the Madsen case by the
Supreme Court at 343 US, at Page 352, where the Court indicated
that that language preserved for such commissions the existing
jurisdiction which they had over such offenders and offenses.
Senator Specter. But, Mr. Chertoff, that case does not
involve the constitutional authority of Congress. When you talk
about occupying the field, you are talking about legislative
intent to have exclusive control over a subject or whether the
States may legislate or whether there may be other authority,
but occupying the field does not go to constitutional
authority. The Constitution is fundamental and is not a matter
of legislative interpretation as to what is occupying the
field.
Mr. Chertoff. I think, to try to be a little more clear,
Senator, what I am saying is that, regardless of how one weighs
the debate over whether the President could authorize these
tribunals, even in the face of an explicit grant of exclusive
jurisdiction to the Federal courts, and I understand there is a
debate about that both ways, and I do not portray myself as an
expert in that, the Courts have interpreted this section as
indicating that Congress has not reserved exclusive
jurisdiction over military--
Senator Specter. But you are talking about a section of a
statute--
Mr. Chertoff. Correct.
Senator Specter. You are not talking about a constitutional
provision and the application of occupying the field.
Mr. Chertoff. I think what I am suggesting--
Senator Specter. Let me just--I think, really, the answer
may be in a little comity back and forth to try to work it out.
We want you to have the authorities you need, but where
Congress has said that the regular rules apply unless it is
deemed impracticable, I think that is what we need to get to.
In your statement where you talk about the need for
secrecy, if there were will be a disclosure of matters, that is
a cogent reason if it comes up in a specific case.
Let me come back to a question which I have broached, but
there was not time, on the Attorney General's rule establishing
detention. Did the Attorney General meet the statutory
requirements for an opportunity to comment on his rule? He put
it into effect before it was even published in the Federal
Register. Was there compliance with the provisions that there
had to be an opportunity, a notice and an opportunity for
comment?
Mr. Chertoff. Is this the rule with respect to the
monitoring of attorney-client communications?
Senator Specter. No, it is the rule with respect to
detainees, which was put into effect, which was written on the
26th, put into effect on the 29th, and not even published in
the Federal Register until the 31st, without any opportunity
for comment. I just want to know if the Attorney General
complied with the applicable law on that subject.
Mr. Chertoff. I have to say, Senator, not being familiar
with the promulgation and the process by which the rule was
promulgated, I would certainly be happy to get back to you with
an answer to that question.
Senator Specter. I would appreciate it if you would. The
red light is on, and I know we have to move on. So, if you
would provide that in writing to the Committee, we would
appreciate it.
Mr. Chertoff. Sure. I would be happy to.
Senator Specter. Thank you very much.
Mr. Chertoff. Thank you.
Chairman Leahy. Thank you. Thank you, Senator Specter.
Thank you, Mr. Chertoff.
Mr. Chertoff. Thank you, Mr. Chairman.
Chairman Leahy. If we could bring the next panel up,
please. They have been waiting very, very patiently. We have
tried to accommodate the administration and my colleague,
Senator Hatch, by having Mr. Chertoff first, and it was
worthwhile.
We will put in the record a number of press accounts and
also leave the record open for any statements of any Senators.
[The prepared statements of Senator Grassley and Senator
Thurmond follow:]
Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of
Iowa
Thank you Mr. Chairman for holding this timely hearing.
The past two and half months since September 11th have
been trying times for all Americans. At the same time, we are a nation
united against the terrorist threat-both at home and abroad-with
greater strength and resolve than at any time in our history. I had a
chance to see this first hand during the past Thanksgiving break in
meetings with first responders back home in Iowa. In these meetings
with firefighters, police, emergency and HAZMAT officials, and public
health officers, there was a broad consensus that the battle against
terrorism be waged aggressively, but that we do so without sacrificing
those principles that make our nation unique.
That's why we made every effort to ensure that the antiterrorism
proposal submitted by the Administration and the Department of Justice
fit well within the bounds of the Constitution. After all, these are
the values that we hold dear and what defines us as a nation.
Throughout this process, the Attorney General and the Department of
Justice worked with both sides of the aisle to produce a consensus
package that would give our law enforcement community the tools they
need to keep this nation safe against terrorists. That bipartisan
package, the USA/PATRIOT Act, passed overwhelmingly by a vote of 98-1.
Since then, the Administration and the Attorney General have sought
to further strengthen their battle against terrorism with additional
law enforcement tools. Many, including the Chairman, have questioned
these initiatives.
I understand and appreciate those concerns. It's the job of
Congress, and this Committee, in particular, to ask the questions about
the appropriateness of these policies. So, I'm pleased that we are
having this hearing today to make sure that we appropriately balance
the real and pressing need for enhanced national security after the
September 11th attacks with the protection of our civil
liberties.
I look forward to today's testimony.
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
I appreciate your concern for the protection of civil liberties
while our Nation fights a war against terrorism. We must not violate
our Constitution in the name of extinguishing terror, or we will
endanger the very freedoms that make our country great. We must not
sacrifice our liberties in attempting to bring our enemies to justice.
In our struggle against terrorism, it is important that we protect
America by enacting reasonable and measured law enforcement initiatives
that also respect individual liberties.
The Bush Administration is employing a variety of tools in the
fight against terrorism, such as the use of military tribunals and the
current detention of suspected terrorists. Some groups claim that these
tools are unconstitutional. However, I believe that the Bush
Administration is pursuing initiatives that are consistent with the
Constitution and do not endanger American freedoms. When exploring the
constitutionality of any law enforcement initiative, it is important to
ask whether the proposal is reasonable. I think that these hearings
will bring to light the reasonableness of the Administration's actions.
President Bush's military order provides for the trial of foreign
terrorists by military commissions. Not only is the President's order
historically based, but it was made pursuant to current law. Military
commissions are rooted in American history, from the trial of deserters
in the Mexican-American War to the trial of President Lincoln's
assassins. Moreover, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme
Court unanimously upheld President Roosevelt's use of a military
commission to try Nazi saboteurs during World War II. In addition to
historical precedent, Congress has approved the use of military
commissions under the law of war (10 U.S.C. Sec. 821).
It has been suggested that the President does not have authority
under 10 U.S.C. Sec. 821 because we are not officially in a state of
war. However, the murderers who flew commercial airliners into the
World Trade Center towers and the Pentagon perpetrated nothing less
than acts of war. The unimaginable destruction in New York and the
damage done to the symbol of American military power are sobering
reminders of the acts of war committed by terrorists.
At this moment, American forces are engaged in a war against
terrorism. It is a unique war because al Qaida is a loosely organized
group spread throughout many different countries. In these unique
circumstances, it is unreasonable to insist that an official
declaration of war be made because the enemy is a shadowy network of
international terrorists.
Military commissions are also good ideas as a matter of policy.
These commissions would allow for the use of classified information. If
such information were easily disclosed in a civilian court,
intelligence operations could be seriously endangered. Military
tribunals would also better protect witnesses and other trial
participants. Additionally, more flexible rules would allow for the use
of evidence collected during war. Rules governing the gathering of
evidence for use in trial courts in the United States do not
necessarily translate to evidence gathered on the battlefield.
Another action taken by the Bush Administration is the current
detention of alien suspects. While it is important that we release
individuals in a timely manner, we must also take national security
concerns into account. In Zadvvdas v. Davis, 121 S. Ct. 2491 (2001),
the Supreme Court held that aliens under a final order of removal from
the United States may be held for up to six months, and that longer
periods may be justified in certain circumstances. The Court also noted
that there may be special circumstances justifying the detention of
especially dangerous individuals in cases presenting national security
implications. In my view, deference should be given to the executive
branch in situations involving national security. While we should
continue. to practice oversight, we should not jump to hasty
conclusions. It is important to note that because the terrorist attacks
occurred in September, no person has been held for the presumptively
reasonable time period of six months.
Mr. Chairman, I am pleased that we are carefully considering the
President's efforts to fight terrorism. While I think that much of the
criticism directed towards the Administration is inaccurate, it is
important that we fully discuss these issues. I think that the
Administration has done a good job of developing ways to bring
terrorists to justice, and I find them to be reasonable tools in the
fight against international terrorism. I hope that my colleagues will
join me in supporting the Administration's efforts to combat terror.
Chairman Leahy. We have on the panel former Attorney
General William Barr. Mr. Barr it was, as always, good to be
with you last week. I enjoyed our conversations and a chance to
get caught up on a lot of subjects; and Professor Heymann, who
is the former Deputy Attorney General of the United States and
one who has spent a lot of time in this room before the
Committees; former Attorney General Bell from Duke University;
Scott Silliman, who is no stranger to the members of this
Committee. He is the executive director of the Center on Law,
Ethics and National Security, Duke University; Kate Martin, who
is the director of the Center for National Security Studies;
and Neal Katyal, a visiting professor, Yale School, who is now
a professor of law at my old alma mater, Georgetown.
Attorney General Barr, if you would like to--first off, I
want to thank all of you for staying. This has been a long
morning. Those of you who have been in the administration know
that when we accommodate the requests of the administration and
the senior member of the President's party to have an
administration witness come, that they get a chance to go a
little longer than we thought.
General Barr, good to have you here.
STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF THE
UNITED STATES
Mr. Barr. Thank you, Mr. Chairman, Senator Hatch.
I would like to briefly touch on the legality or the
constitutionality of the military tribunal order of the
President, and then recognize that there are really two issues
beyond that, and that is whether it is prudent and advisable in
a particular circumstance to use those procedures or whether
greater rights and procedures should be given, in a particular
case, given to a foreign national who is at war against the
United States.
And then, finally, the so-called civil rights concerns, and
the understandable concerns that may emerge if these things
were to be applied to people within the United States.
I think there is no doubt that the President was well
within his constitutional authority to promulgate this order,
as his predecessors took similar steps. It is important to
recognize we are talking here about two distinct realms.
There is a fundamental difference between the Government,
when it is acting in a law-enforcement capacity, that is, when
it is acting within the framework of civil society, regulating
civil society, setting up procedures, processes, rights, levels
of appeal, and so forth, the rules of the game within society,
and the realm, when the Government is acting in national
defense, that is, when that society comes under attack by
foreign adversaries.
They are wholly different, and the relationship between the
Government and the individual changes radically once there is a
state of armed conflict from a foreign or armed adversary. In
that case, where there is a state of armed conflict, as the
Supreme Court has recognized, we are now dealing with the
national defense power of the United States, the law of war
applies and tribunals are part of the war power.
Whether or not a combatant is engaged in military
operations or has been captured, the relationship between the
sovereign Government and that individual is the relationship of
us exercising national defense power against that individual.
That is what military tribunals involve, the exercise of
military or, that is, the war power as to those individuals. It
is not the judicial power of the United States.
Now no war need be declared for this power to come into
being. It is an adjunct of any lawful use of force by the
Government. And the Supreme Court and Congress have recognized
repeatedly that the country can exercise its powers of national
defense and engage in armed conflict without a formal
declaration of war. And, indeed, from the very foundation of
the Republic, it was recognized, particularly where the United
States is attacked and the President is responding to attacks,
there is no requirement for a declaration of war for there to
be the lawful use of the war power.
The question has been raised whether Congress has to
authorize the use of military tribunals. The answer is obvious.
Congress does not have to authorize it because it is an
incident of the war power. As the Supreme Court has repeatedly
said, it is just like the President moving a division from
Point A to Point B. It is incident to the war power just like
hearings and subpoenas are incident to the legislative power,
and therefore it does not require any specific authorization.
So, even if there was nothing in the U.S. Code or in the
laws, the Commander-in-Chief could constitute military
tribunals to try cases that arise under the laws of war. But,
of course, the fact is that Congress has sanctioned them and
specifically recognized their jurisdiction in 10 U.S.C. 1821.
Now one of the problems arises because people naturally
feel concerned when these tribunals would be used against
people in the United States. I think there seems to be a
visceral understanding that overseas, where we apprehend people
on the battlefield, it does not make much sense to bring them
back and try them in our civil courts for violations of the
laws of war, but there seems to be a concern that, gee, what
happens when someone comes into the United States?
From a legal standpoint, there is no geographical limit to
the principle that when the Government is defending the country
and exercising its war powers against armed foreign nationals
who are waging war against the United States, it does not
matter whether those nationals are overseas or where they have
successfully entered the United States.
The last time that an armed adversary came into the United
States abiding by the rules of war was, I think, in 1814, when
the British came in their red coats openly bearing arms. They
were not entitled to our constitutional protections. They are
not entitled to due process. Their rights as combatants come
from the laws of war, not our Constitution.
The fact that a foreign adversary enters the United States
successfully does not mean that all of a sudden he becomes
invested with constitutional rights. If he robs a bank, he
breaks the civil order and we proceed against him, he gets the
same rights as a citizen. If he is bearing arms against the
United States and waging war against the United States, he gets
no right under the Constitution. His rights arise under the
laws of war.
Now here we have a different kind of entry, surreptitious
entry by an enemy, which is itself a violation of the laws of
war. They did not come in uniform, they did not come openly
bearing arms, and they came with the intent of destroying
civilian targets. For the same reason that a uniformed
adversary who sets foot in this country is not entitled to
constitutional protections, the same is true, if not more so,
for someone who violates the laws of war by entering
surreptitiously, which the Supreme Court has repeatedly held
and has averted to numerous times.
Nevertheless, that does raise the issue, when you start
using military tribunals against people who are present in the
United States, there may be an understandable concern that, in
theory, this is a device that could be abused and taken too
far. The question really is, is it being taken too far here,
and there is no evidence at all that it is. In fact, we have a
very clear objective, events that establish that this is not
being used as a pretext.
We are in a very dangerous situation of unprecedented and
kind of war we are waging. It has to be predicated on the
President's determination that this is triable, these
individuals have committed violations of the law of war that
are traditionally triable in military tribunals, it applies
only to noncitizens, and notwithstanding some of the hysterical
commentary, the Supreme Court has not been stripped of habeas
corpus jurisdiction over individuals who are in the United
States. This language was in President Roosevelt's executive
order. It follows President Roosevelt's executive order and
Quirin shows that the Supreme Court could exercise habeas
corpus to ensure that there was no abuse.
Thank you.
[The prepared statement of Mr. Barr follows:]
Statement of Hon. William P. Barr, Former Attorney General of the
United States
Mr. Chairman, Senator Hatch and the Members of the Committee, I am
pleased to provide my views on the important issues surrounding our
response as a Nation to attacks against our homeland and the continuing
national security threat posed by al Qaeda. By way of background, I
have previously served as the Assistant Attorney General, the Deputy
Attorney General, and the Attorney General of the United States. I have
also served on the White House staff and at the Central Intelligence
Agency. The views I express today are my own.
President Bush's decision to authorize the use of military
tribunals against members of al Qaeda is not only well within his
constitutional authority, but is supported by ample historical
precedent and practical common sense. Al Qaeda is an armed foreign
force that is waging war against the United States. In confronting such
an enemy, the President is acting as Commander-in-Chief of our armed
forces--he is exercising the war powers of the United States. Our
national goal in this instance is not the correction, deterrence and
rehabilitation of an errant member of the body politic; rather, it is
the destruction of foreign force that poses a risk to our national
security. It is anomalous to maintain that the President has
constitutional authority to order deadly bombing strikes or commando
raids against such an enemy, while at the same time maintaining that,
if the enemy surrenders or is captured, the President is suddenly
constrained to follow all the constitutional protections applicable to
domestic law enforcement. Foreign nationals who are in a state of armed
conflict with the United States do not enjoy the same constitutional
rights as American citizens. Since before the Revolutionary War, it was
recognized that those who violate the laws of war during an armed
conflict have the status of ``unlawful belligerents'' and are subject
to military trial for their offenses. Whether they pursue their deadly
purpose in a training camp in Afghanistan or a flight school in
Florida, al Qaeda members are unlawful belligerents and, under clear
Supreme Court precedent, are entitled only to treatment consistent with
the laws of war. Having cast their lot by waging war against the United
States, they are properly judged by the laws of war.
1. The President Has Constitutional Authority to Order the Trial of al
Qaeda Members by Military Tribunal.
On September 11, 2001 this Nation was attacked by a highly-
organized foreign armed force known as ``al Qaeda.'' The attack cost
more American lives and caused more property damage than the Japanese
sneak attack on Pearl Harbor. This same organization has declared
itself at war with the United States and has stated its intention to
use any weapons at its disposal--including weapons of mass
destruction--against both civilian and military targets. Prior to
September11, 2001, al Qaeda acknowledged perpetrating armed attacks on
our military personnel, our naval ships, and our embassies. al Qaeda
operatives and their supporters are presently engaged in the field
against our own military forces in Afghanistan. They have personnel in
over 60 countries, where they are undoubtedly poised to attack United
States interests. There can be little doubt that ``cells'' of this
organization remain in the United States, ready to carry out further
attacks.
It is clear that a state of war exists between the United States
and al Qaeda. Al Qaeda has openly proclaimed a war against the United
States and has repeatedly carried out attacks against us. The
President, as Commander-in-Chief, is empowered to take whatever steps
he deems necessary to destroy this adversary and to defend the Nation
from further attack. As the Supreme Court recognized in The Prize
Cases, 67 U.S. 635, 668 (1862):
If a war be made by the invasion of a foreign nation, the
President is not only authorized but bound to resist force by
force. He does not initiate the war, but is bound to accept the
challenge without waiting for any special legislative
authority. And whether the hostile party be a foreign invader,
or States organized in rebellion, it is none the less a war,
although the declaration of it be ``unilateral.''
In this case, the President's judgment that a state of armed
conflict existed is confirmed by the actions both of the Congress and
our allies. By its Joint Resolution of September 18, 2001, Congress
recognized that the attacks of September 11th ``render it
both necessary and appropriate that the United States exercise its
rights to self-defense. ``Authorization for the Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224, (2001). Congress authorized the
President to ``use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September
11, 2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United
States by such nations, organizations or persons. ``Id. Sec. 2(a). The
Joint Resolution expressly recites that it constitutes a specific
statutory authorization for the use of military force within the
meaning of the War Powers Resolution. Id. Sec. 2(b). Obviously, the
President does not need a joint resolution of Congress to enforce our
domestic criminal laws, and those laws are not generally for the
``self-defense'' of the Nation. Similarly, our NATO allies have
recognized that the attacks of September 11th constitute
acts of war by invoking the mutual self-defense provisions of Article 5
of the North Atlantic Treaty.\1\
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\1\ Article 5 of the North Atlantic Treaty can only be invoked in
the case of an ``armed attack'' against a NATO member.
---------------------------------------------------------------------------
When the United States is engaged in an armed conflict and
exercising its powers of national defense against a foreign enemy, it
is acting in an entirely different realm than the domestic law
enforcement context. The Nation, and all those who owe her allegiance,
are at war with those foreign enemies. That is not an analogy or a
figure of speech--it describes a real legal relationship and one that
is fundamentally different from the government's posture when it seeks
to enforce domestic law against an errant member of society. When we
wage war, the Constitution does not give foreign enemies rights to
invoke against us; rather, it provides us with the means to defeat and
destroy our enemies. As President Lincoln understood, and repeatedly
said, maintaining the security of our Union is the sine qua non of all
civil liberties. It is the basis upon which the exercise of all other
civil rights depends.
Much of the criticism of the President's Executive Order
authorizing the use of military tribunals stems from a fundamental
confusion between the realm of domestic law enforcement and the realm
of military defense of the Nation. This is not a confusion that has
been shared by past Presidents, past Attorneys General, or the United
States Supreme Court. Since the Revolutionary War, this country has
used military tribunals to punish violations of the laws of war by our
enemies during armed conflicts. Congress has consistently confirmed the
jurisdiction of these tribunals by statute and the Supreme Court has
recognized that military tribunals lie outside the judicial power and
the constitutional norms that must attend a civilian trial. Military
tribunals constitute part of the executive function of the actual
prosecution of war--they are an instrument at the President's disposal
as part of the overall war effort. The President's decision to use them
in our war against al Qaeda is supported by historical precedent,
Supreme Court decisions, and common sense.
American history is replete with examples of the use of military
tribunals to try foreign combatants for violations of the laws of war.
The legitimacy of their use does not depend upon the nature of the
armed conflict, whether a formal declaration of war has been made, or
whether the unlawful belligerent committed the violation here or
abroad. Thus, in 1780, George Washington appointed a ``Board of
Commissioned Officers'' to try Major John Andre, a British spy who was
accused of receiving strategic information from Benedict Arnold. In
1818, then-General Andrew Jackson ordered two British citizens tried by
a military tribunal for inciting Seminole Indian attacks against
American civilians in Georgia. Military tribunals were used extensively
during the Civil War to try confederate soldiers and spies who acted
out of uniform to attack Union ships or industrial plants. See Ex Parte
Quirin, 317 U.S. 1, 31 n. 9 (1942) (listing examples). Indeed, a
military tribunal, known as the Hunter Commission, was empanelled to
try those responsible for the assassination of President Lincoln. In
opining on the constitutionality of such a commission, Attorney General
Speed wrote: ``The commander of an army in time of war has the same
power to organize military tribunals and execute their judgments that
he has to set his squadrons in the field and fight battles. His
authority in each case is from the law and usage of war. ``11 U.S. Op.
Atty. Gen. 297, 305 (1865). He further opined that the laws of war
provided for military trials for ``secret participants in hostilities,
such as banditti, guerillas, spies, etc. ``Id. at 307.\2\ Attorney
General opinions have also recognized that military tribunals could be
used to try Indians for crimes against civilians where a state of open
hostility between an Indian tribe and the United States existed. See,
e.g., 14 U.S. Op. Atty. Gen. 249 (1873) (Modoc Indian prisoners accused
of crimes against civilians during hostilities with the United States
could be tried by military tribunal). See also 13 U.S. Op. Atty. Gen.
470, 471 (1871) (noting that war need not be ``formally proclaimed''
for the laws of war to apply to military engagements with Indian
tribes).
---------------------------------------------------------------------------
\2\ Attorney General Speed's opinion has stood the test of time.
Recently, a federal district court rejected a challenge to the
jurisdiction of the Hunter Commission in reviewing the denial of a
request to correct military records pertaining to Dr. Samuel Mudd, the
medical doctor who aided John Wilkes Booth and David Herold after the
assassination. See Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001).
Relying upon the Supreme Court's Quirin decision, the district court
found that ``persons such as spies or combatants not wearing uniforms
or in disguise, who may come secretly across enemy lines for the
purpose of robbing, killing or destroying bridges, roads, canals,
etc.,'' are ``unlawful belligerents'' subject to military trial for
violations of the laws of war. Id. at 145.
---------------------------------------------------------------------------
The most recent and most apt example of the use of military
tribunals is the trial of the eight Nazi saboteurs that took place
before seven military officers here in Washington, D. C. in July of
1942. These foreign operatives were trained in what the Supreme Court
referred to as a ``sabotage school'' near Berlin. Ex Parte Quirin, 317
U.S. at 21. They entered the United States surreptitiously, moved about
in civilian dress, and were trained and equipped to attack civilian
targets such as roads, bridges and industrial plants. They were
initially arrested and detained by civilian authorities. President
Roosevelt determined that they should be tried for violations of the
laws of war before a special military commission, composed of seven
United States army officers.
In Ex Parte Quirin, a unanimous Supreme Court upheld the
jurisdiction of the military commission to try these individuals for
violations of the laws of war. Echoing Attorney General Speed, the
Supreme Court found that the military tribunal was ``an important
incident to the conduct of war,'' that allowed the President ``to seize
and subject to disciplinary measures those enemies who in their attempt
to thwart or impede our military effort have violated the law of war.''
317 U.S. at 28-29. Thus, these tribunals were part and parcel of the
Commander-in-Chief's prosecution of the war effort. The Supreme Court
held that military tribunals were not an exercise of the judicial power
conferred by Article III of the Constitution, and therefore were not
subject to constraints imposed upon civilian criminal process by the
Fifth and Sixth Amendments. Id. at 38-39. The Court noted that unlawful
belligerents had been subject to military trial since before the
framing of the Constitution, and that Congress had authorized the trial
of alien spies by military tribunal shortly after the adoption of the
Constitution. Id. at 41. The Supreme Court also noted that anomaly that
would be created by a contrary ruling--our own soldiers would be
subject to military trial for violations of the laws of war while enemy
aliens charged with such violations would receive all the
constitutional protections of a civilian trial. Id. at 44.\3\
---------------------------------------------------------------------------
\3\ In Quirin, the Supreme Court reserved the constitutional issues
of whether the President needed any legislative authorization to
empanel military tribunals, see 317 U.S. at 29, and whether Congress
could ``restrict the power of the Commander in Chief to deal with enemy
belligerents,'' id. at 47, because it found that Congress had approved
the use of military tribuanals in the Articles of War.
---------------------------------------------------------------------------
The Supreme Court's ruling in Quirin makes clear that unlawful
belligerents cannot invoke the constitutional guarantees applicable to
a civilian trial and are not entitled to judicial review of the results
of a military tribunal. Indeed, Quirin reserved the issue whether
unlawful belligerents were entitled to a trial at all before the
President could subject them to ``disciplinary measures. ``Id. at 47.
Qurin's holding does not turn on location within or outside the United
States, the potential applicability of civilian crimes, the
availability of civilian courts, or even the citizenship of the
individuals involved. Rather, Quirin turns entirely on status as
``unlawful combatants'' under the laws of war. It is this status that
entitles the President to exercise military power against such
persons--including the use of military tribunals.
Nor need we examine the issue reserved in Quirin of the Executive's
authority to establish military tribunals absent legislative mandate.
Congress has authorized the use of military tribunals consistent with
the laws of war in the Uniform Code of Military Justice. Title 10,
United States Code, Section 821, provides that: ``The provisions of
this chapter conferring jurisdiction upon courts-martial do not deprive
military commissions, provost courts, or other military tribunals of
concurrent jurisdiction with respect to offenders or offenses that by
statute or by the law of war may be tried by military commissions,
provost courts, or other military tribunals.'' The President is also
given authority to prescribe the rules for all military tribunals,
including ``pretrial, trial, and post-trial procedures'' and ``modes of
proof.'' See 10 U.S. C. Sec. 836. In Application of Yamashita, 327 U.S.
1, 7-8 (1946), the Supreme Court held that, by enacting the precursors
to these provisions in the Articles of War, Congress had ``sanction[ed]
trial of enemy combatants for violations of the laws of war by military
commission,'' and had ``adopted the system of military common law
applied by military tribunals.''
The President's judgment that members of al Qaeda and those who
knowingly give them aid and comfort are subject to military justice is
clearly supported by the facts and the law in this case. The very
raison d'etre of al Qaeda is to violate the laws of war by targeting
innocent civilians in order to create a state of terror. As the Supreme
Court noted in Quirin, never in the history of our Nation have foreign
enemies who infiltrated our territory been accorded the status of
civilian defendants with all the rights enjoyed by citizens of the
United States. See 317 U.S. at 42 (``It has not hitherto been
challenged, and, so far as we are advised, it has never been suggested
in the very extensive literature of the subject that an alien spy, in
time of war, could not be tried by military tribunal without a jury.'')
(footnote omitted). If armed al Qaeda members had made a military
landing on Manhattan Island and began attacking civilians, few would
argue that they were not combatants subject to the laws of war. How
does the fact that they instead infiltrated the United States
surreptitiously with the same evil purpose somehow give them greater
constitutional rights? By such logic, Nazi war criminals could have
avoided military justice simply by sneaking into the United States and
invoking their ``right'' to a jury trial in civilian court.
2. Domestic Criminal Justice Procedures Will Frustrate Our Fight
Against al Qaeda.
In addition to its sound constitutional and statutory basis, the
President's Executive Order establishing the option of military
tribunals makes good sense. It will allow for a more effective response
to the al Qaeda threat, while at the same time not insisting upon the
application of constitutional and statutory rights in a context where
they are inapposite and where their wooden application could lead to
their erosion.
The constitutional protections applicable to a domestic criminal
trial, such as trial by jury in the district where the crime occurred,
the right a grand jury indictment, and the right to confront and cross
examine witnesses are designed to protect our citizenry from the power
of government. They have no logical application to the exercise of
military power to protect our citizenry and our government from an
external foe. Indeed, these rights can be exploited by a foreign enemy
to learn about our defenses and intelligence methods and make future
attacks more likely to succeed.
Civilian criminal defendants have the right to obtain any
statements they have made that are recorded by the government
(including electronic surveillance tapes), see Fed. R. Crim. P. 16,
prior written statements of government witnesses who testify at trial,
see 18 U.S.C. Sec. 3500, and any material that might impeach the
credibility of government witnesses. See Giglio v. United States, 405
U.S. 150 (1972). These rights are inimical to the successful
confrontation of a foreign foe. Indeed, one of the key factors in the
success of the attacks of September 11th was the operational
security practiced by the al Qaeda members in the United States.
Information disclosed during civilian trials regarding our law
enforcement techniques and capabilities could assist al Qaeda in
evading detection in future attacks. Moreover, a public trial can be
used by civilian criminal defendants to practice what is known as
``graymail. ``The defense claims the necessity of revealing national
security information during the trial, thus gaining significant
leverage over the prosecution. We should not even allow the possibility
for such an occurrence in our pursuit of al Qaeda.
Civilian criminal defendants have the right to challenge the
seizure of evidence under the Fourth Amendment. They can also challenge
the authenticity of physical evidence by demanding that a chain of
custody be established. These rules cannot logically be applied to
``evidence'' uncovered in a military theater such as Afghanistan. Our
military forces are rightly concerned with winning the war--not
securing crime scenes and careful documentation of chains of custody.
Finally, civilian trials in this context are not safe for grand
jurors, judge, petit jurors or civilian witnesses. In the aftermath of
these attacks and our military response, a prolonged civil trial would
make the federal courthouse itself and all trial participants clear
targets for al Qaeda reprisals. Military trials held on military
installations--whether here or abroad--will be safer for all concerned.
In closing on this issue, let me say that all power is subject to
abuse. But neither our constitutional law nor our policy toward
terrorism should be made by parade of horribles. The President has
limited the application of his order to foreign nationals who: 1) are
al Qaeda members; 2) commit acts of international terrorism against the
United States; or 3) knowingly aid and abet acts of international
terrorism against the United States. As cases like Quirin and Yamashita
make clear, the writ of habeas corpus is always available to test the
jurisdiction of military tribunals in Article III courts. Moreover, our
courts martial and military tribunals have a long history of rendering
impartial justice. Many Nazi and Japanese combatants were acquitted of
war crimes by military tribunals. The President's Executive Order
promises ``full and fair trials'' under procedures to be promulgated by
the Secretary of Defense. I have no doubt those procedures will,
consistent with 10 U.S.C. Sec. 836, incorporate as many aspects of
civilian procedure are practicable under the circumstances. We should
not pass judgment on these military tribunals until they themselves are
allowed to operate and pass judgment. We insult our military by
comparing these tribunals to those established by foreign dictators or
by slighting them as ``Kangaroo courts'' before they have even been
convened.
3. The Attorney General May Lawfully Withhold Operational and Other
Details Regarding an Ongoing Criminal Investigation.
The Committee has also expressed some concern over the fact that
the Department of Justice has declined to release statistical data
regarding its continuing investigation into al Qaeda activities and
operatives here at home. In my view, this criticism is unfounded. The
Sixth Amendment guarantees a criminal defendant ``a speedy and public
trial. ``In addition, the Supreme Court has found that the public has a
common law and First Amendment right to access to proceedings central
to the criminal process, such as pretrial hearings. See generally
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). These rights have
never been interpreted to extend to operation details of the
investigative stage of criminal law enforcement. Our laws provide for
strict secrecy of grand jury proceedings, both for the protection of
individuals called before the grand jury and the integrity of the
government's investigation. See Fed. R. Crim. P. 6(e). Affidavits in
support of arrest and material witness warrants as well as indictments
are often filed with the court under seal in cases where they may
contain information that could compromise ongoing criminal
investigations. In its Exemption 7, the Freedom of Information Act
expressly recognizes that information that ``could reasonably be
expected to interfere with enforcement proceedings,'' including
compromising confidential sources or law enforcement ``techniques or
procedures'' is exempt from public disclosure. See 5 U.S.C.
Sec. 552(b)(7).
That is undoubtedly the case here. Information about who is
presently detained by the government, when and where they were
arrested, their citizenship and like information could be of great
value to criminal associates who remain free. First, it would provide
al Qaeda with information regarding what ``cells'' or operations have
been compromised and which ``cells'' or operations are still intact.
Equally dangerous, it could allow al Qaeda to extrapolate the kind of
criteria and sources of information law enforcement was employing in
attempting to locate al Qaeda operatives and thereby tailor their
activities to avoid further detection. These are exactly the kinds of
harms that FOIA Exemption 7 is designed to protect against.
Finally, as Attorney General Ashcroft has noted, there may be
significant privacy and even due process concerns with the wholesale
release of the names of those detained in this investigation. A
government ``blacklist'' naming individuals suspected of connections
with al Qaeda could seriously affect the reputation, employment
prospects, and even physical safety of the individuals involved.
Moreover, such a list would be compiled based upon mere suspicion,
without an opportunity for those named to marshal evidence of their
innocence of the charge. Cf. Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123 (1951). For these reasons, I believe the
Department of Justice has acted properly in refusing to release
operational and statistical information that could compromise ongoing
law enforcement operations and violate the rights of the individuals
involved.
4. The Attorney General's Interim Rule Authorizing the Monitoring of
Attorney Client Communications in Limited Circumstances is
Constitutional.
In my view, the Attorney General's rule regarding the monitoring of
attorney-client communications, given the limited and unique
circumstances to which it applies, is constitutional under the analysis
set out by the Supreme Court in Weatherford v. Bursey, 429 U.S. 545
(1977). Three factors lead me to this conclusion. First, the monitoring
is undertaken for the lawful purpose of frustrating further criminal
activity that threatens innocent human life. The Supreme Court has
recognized that this is a legitimate law enforcement interest that must
be balanced against Fifth and Sixth Amendment rights. See New York v.
Quarles, 467 U.S. 649 (1984) (recognizing ``public safety'' exception
to Fifth Amendment requirement of Miranda warnings). Second, as in
Bursey itself, the prosecution team will not learn of any conversation
regarding legal strategy that might prejudice the defendant or benefit
the government. See Bursey, 429 U.S. at 557-58 (holding that unless
there was ``a realistic possibility of injury to Bursey or benefit to
the State, their can be no Sixth Amendment violation''). Third, the
requirement that both the detainee and his attorney receive notice of
the monitoring eliminates the need for prior judicial intervention
under the doctrine of ``implied consent. ``See, e.g., McMorris v.
Alioto, 567 F. 2d 897, 900-01 (9th Cir. 1978 (Kennedy, J.) (applying
doctrine of implied consent to searches of persons entering a federal
courthouse).
The Attorney General has carefully limited his rule to prisoners
who are already under Special Administrative Measures, see 28 C.F.R.
Sec. 501. 3(a), and for whom he further finds there is ``reasonable
suspicion exists to believe'' that attorney client communications may
be used to ``facilitate acts of terrorism. ``Id. Sec. 501. 3(d). The
Attorney General has indicated that he will interpret the term
``reasonable suspicion,'' as the Supreme Court has in the case of
police stops, see Terry v. Ohio, 392 U.S. 1, 27-28 (1968), to require
objective facts from which a reasonable person could draw an inference
that criminal activity was afoot.
This rule is a necessary prophylactic measure designed to allow the
Attorney General to take appropriate action in the face of the kind of
massive danger to innocent human life posed by attacks such as those
perpetrated on September 11th. Faced with this kind of
threat, we cannot require the Attorney General to prove to a court that
the attorney client privilege has already been abused to further
criminal activity. By the time the Attorney General has marshaled such
facts and presented them to a court, it could well be too late. In
these unique circumstances, where law enforcement acts not to gather
evidence but to prevent an imminent and potentially devastating public
harm, it is appropriate that the Attorney General make the initial
determination without judicial intervention. Because both the detainee
and his attorney are given notice of the monitoring, they may challenge
the Attorney General's actions in federal court after the fact.
CONCLUSION
The actions of the President and the Attorney General have, in my
view, been measured and prudent in light of the threat to American
lives and liberty posed by al Qaeda. Our Constitutional scheme
contemplates that the powers and duties of the Executive Branch of
government will expand in a time of national crisis or armed conflict.
The swiftness and unity of purpose with which the Executive can act to
defeat foreign threats to our liberty has proven an indispensable
bulwark in securing our freedoms throughout our history. In perilous
times, as the Framers envisioned, it has been both the energy and
wisdom of a strong Chief Executive (uniquely accountable to all the
people) that has ultimately protected our liberty, not undermined it.
We owe our freedoms today in no small measure to the decisive actions
of Abraham Lincoln and Franklin Roosevelt, taken in the face exigent
danger. In the current circumstances, the real threat to domestic
liberties is the artificial restriction of our powers of national
defense by gratuitously expanding constitutional guarantees beyond
their intended office. I have every confidence that the President and
the Attorney General will protect our Nation and the liberties we hold
dear. I welcome the Committee's questions.
Chairman Leahy. I have always enjoyed having your
testimony. I hate to be a bit of a bear on the light.
Unfortunately, we have other constraints that require that.
Mr. Heymann?
STATEMENT PHILIP B. HEYMANN, JAMES BARR AMES PROFESSOR OF LAW,
HARVARD LAW SCHOOL
Mr. Heymann. How long would you like me to restrict myself
to, Senator Leahy? Seriously.
Chairman Leahy. I thought the panel had been told 5
minutes.
Mr. Heymann. Five minutes is just fine.
I would like to explain that I think of myself here and I
would like to speak today as a terrorism expert whose book is
doing surprisingly well since September 11th. I don't want to
focus on the constitutional issues because you have lots of
other people to focus on them. I don't agree with Mr. Barr. And
I would like to say as to that only that when asked what was
the nearest precedent, Mike Chertoff said Ex Parte Quirin. Ex
Parte Quirin is a case about eight identified people,
indisputably Nazis, indisputably from Germany, sent to a
military trial, a single military trial, on the charges of
espionage, being behind enemy lines without uniform, which had
been traditional since the Revolutionary War. Very traditional.
It is a long way to go from that to an order that covers 20
million people in the United States, lasts forever, covers any
act of terrorism, whether connected to Al Qaeda or not, covers
any aiding, abetting, or conspiracy towards any act of
terrorism, covers harboring anybody who aided or abetted ever
in the past somebody who ever in the past was a terrorist, and
forever henceforth. That is a long way from Ex Parte Quirin, so
I don't share Mr. Barr's confidence that the Supreme Court will
sustain that order.
Let me go to the policies of counterterrorism. The first
lesson there that everybody who has studied terrorism learns is
a military lesson, and that is, after you get your gun, try
very hard not to shoot yourself in the foot. Or if you are
going to bomb the enemy, try not to bomb friendly forces at the
same time.
The President's order on military detention, the military
order which authorizes both detention and military tribunals,
shoots us in the foot in a major way for no good reason.
I have to step back for one second. I feel a little bit
like there are two totally different orders being discussed.
Most of the hearing before the Committee was a discussion with
Mr. Chertoff of the handling--nobody limited it this way, but
in the back of our minds was--the handling of Al Qaeda
terrorists seized in Afghanistan, where there are no courts,
and subject to military trial there, and, indeed, as Mr.
Chertoff said he hoped, subject to very fair trials under
regulations that we have not yet seen by the Department of
Defense. The trials, he suggested, may very well be public,
although keeping them private is probably the primary purpose
of having military tribunals in this case.
The order I am talking about doesn't have to do with a
handful of people or 20 people or 40 people in Afghanistan. It
covers 20 million people living in the United States, most of
whom--15 million of whom--are legal residents, and their
children. It says that there can be indefinte detention or a
military tribural whenever the President suspects that one of
this multitude is or may have been a terrorist in the past or
has aided or harbored a past or present terrorist. And it makes
those consequencies possible whether the terrorism involved was
a large terrorist event or a trivial terrorist event--and there
are terrorist events as trivial as the September 11th occasion
was massive and horrible.
Whenever that takes place, the President has the
extraordinary power have described. Mr. Chertoff assures us the
President won't exercise the power wrongly. I believe he will
do his best. But I don't think the Constitution gave the
President there powers--and I don't think the President can
take it and I don't think Congress should give them to
President when their reach is to any of 20 million people in
the United States, plus anyone else outside the United States,
whom he reasonably suspects falls in those categories. A secret
trial before three colonels sounds to much like Paraguay in the
1970's. We don't know whether there is to be proof beyond a
reasonable doubt. We don't know whether all the evidence that
the colonels see will be made available to the defense. You
don't do that if you are interested in effective
counterterroris unless there is a real necessity. There is lots
of evidence that it is not necessary.
Now, number one, Britain hasn't found it necessary to do
without judges. Germany didn't find it necessary to do without
judges. Italy had a terrorist group, the Red Brigades, that
numbered fully as many as Al Qaeda, and it was all in Italy. It
didn't find it necessary to do without judges. We are the first
ones to find it necessary to do without judges.
What I think the Congress must do, what I think is the only
intelligent thing to be done, is to look at both the benefits
and the costs of what is being proposed. There are two powers
the President wants over every non-citizen he suspects aiding,
other having aided, any form of terrorism. The first is
indefinite detention. Senator Hatch made the point earlier
today that everybody who is now detained is detained either as
a violator of immigration laws or as somebody arrested for a
crime. It is a reassuring point until you realize that the
President's order gives the Secretary of Defense power to
detain anybody, without any of those protections. Second, also
gives the military the power to try anyone in this cateory
before military tribunals without well-specified law because
there is no law of war at the moment on terrorism.
Well, what is the case for it? Now, my successor as head of
the Criminal Division, Michael Chertoff, in remarkably honest
and straightforward testimony, insisted that these matters
could be tried properly before civilian courts. The United
States has succeeded in every terrorist case, that it had to.
We have extra-territorial statutes. We have the Classified
Information Protection Act. We have the Foreign Intelligence
Surveillance Act. We have ways of protecting witnesses. It is
very hard to imagine why we wouldn't be able to try in our
federal courts any of those 20 million people now living in the
United States.
Michael Chertoff was arguing, well, maybe you should, maybe
you shouldn't, the President should decide. The costs are
immense: the foreign policy costs, the sense of insecurity of
people who aren't citizens of the United States, the sense of
insecurity of citizens who know that Ex Parte Quirin allows
exactly the same thing to be done--by a Presidential order for
citizens. Being unnecessary in light of the proven capacities
of our prosecutors, courts, and law, the proposal has no
compensating benefits.
I have 12 other points. Please get them out of my paper.
[The prepared statement of Mr. Heymann follows:]
Statement of Dr. Philip B. Heymann, James Barr Ames Professor of Law,
Harvard Law School
Mr. Chairman, Members of the Committee:
I am pleased to testify because the Committee is reviewing what I
regard as one of the clearest mistakes and one of the most dangerous
claims of executive power in the almost fifty years that I have been in
and out of government. I do not say that as a civil libertarian; I have
always considered public safety to be fully as relevant as democratic
traditions when they really are in conflict. So my advice to members of
your staff and the House Judiciary staff on the Administration's bill
revised as the PATRIOT statute, was that, with some exceptions, the
provisions were reasonable and often overdue. I do not have the same
reaction to the President's order on military trials.\1\
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\1\ Military Order of November 13, 2001--Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.
Reg. 57,831 (November 16, 2001).
---------------------------------------------------------------------------
At the same time I reject as ``knee-jerk'' the security reactions
of columnists such as George Will or the law professors he quotes,
including my good friend and admired colleague, Larry Tribe.\2\ They
are at least as dangerous as the thoughtless objections of those on the
opposite side. I have personally seen and studied the effects of
military courts in Guatemala where I later worked, and in Argentina,
Paraguay, and the People's Republic of China. I have seen the fear and
hatred they engender in a population and compared that to the immense
appreciation and respect both our military and our courts have long
enjoyed. I have watched the strained identification with us that the
leaders of Zimbabwe and Egypt have based on our ``shared'' recourse to
military courts, a step rejected by Britain, France, Germany, and Italy
when they were under sustained terrorist attacks. (See Appendix A.)
Knee-jerk reactions are no safer on one side of these issues than on
the other.
---------------------------------------------------------------------------
\2\ George F. Will, Trials and Terrorists, WASHINGTON POST, Nov.
22, 2001, at A47.
---------------------------------------------------------------------------
We have a deep tradition--expressed powerfully in the Declaration
of Independence--of confining military courts and secret proceedings to
as small an area of necessity as possible.\3\ Only in the following
circumstances have our courts allowed military tribunals to try
citizens and aliens alike: where in a wartime situation there are no
operable civilian courts; where, before peace is declared, there is to
be a trial of wartime atrocities against the internationally recognized
laws of war; where spies attached to a belligerent nation have been
caught behind our lines. In all other situations they have refused, in
inspired language, to depart from a legal tradition so old, so
important, and so much a part of what we stand for.
---------------------------------------------------------------------------
\3\ The Declaration of Independence notes: ``The history of the
present King of Great Britain is a history of repeated injuries and
usurpations, all having in direct object the establishment of an
absolute tyranny over these states. To prove this, let facts be
submitted to a candid world.'' THE DECLARATION OF INDEPENDENCE para. 2
(U.S. 1776). ``[The King] has affected to render the military
independent of, and superior to, the civil power.'' Id. at para 14.
``He has made judges dependent on his will alone, for the tenure of
their offices, and the amount of payment of their salaries.'' Id. at
para. 11.
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There is, in short, a high Constitutional presumption of civilian
trials, except in a few identified situations during quite traditional
wars, recognized as such by the Congress, where we could lose our
freedoms to another nation. I will not argue today whether a war on
many forms of terrorism continuing until this century-long modern
phenomenon is ended will, unlike a war on the murderous Colombian
cartels or the Mafia, qualify as a war for the Supreme Court's
jurisprudence on military trials. I doubt it. In any event, the
detention provisions of the same Presidential order clearly do not
satisfy the specified Constitution criteria for extra-judicial
detention: ``invasion or rebellion'' leading Congress to suspend habeas
corpus.
I don't need the heavy presumption, captured by Jefferson in the
Declaration of Independence, to make my case. Nor need I refer to the
last six words of the pledge of allegiance. Like almost everyone else
who has studied how nations have handled terrorism, I ask only that the
government consider and specify openly what are the costs and benefits
of any change in democratic traditions it proposes. If Attorney General
Ashcroft or President Bush had done this with regard to the importance
and scope of their prospective change from civilian courts to secret
military tribunals, the public would not accept the change. Certainly
the Congress would not agree to it.
Let me review the benefits, costs, and inflammatory breadth of the
President's order.
The benefits. The proposal will help solve whatever problem remains
after more than two decades of legislation and proud law enforcement
experience in dealing with the difficulties of civilian trials of
terrorists and spies. The Congress has passed ``extra-territorial''
criminal statutes that apply stern measures to terrorism committed
abroad against Americans.\4\ It has passed statutes allowing special
electronic and physical searches of spies and terrorists from other
countries and has just extended, in a very sensible way, their
scope.\5\ Two decades ago I helped author a statute to allow trials
while protecting national secrets.\6\ The intelligence investigators
and prosecutors have used it with immense success. We have decades of
experience in protecting witnesses. There is precedent, from the United
Kingdom, that allows the conviction, as a conspirator or accomplice, of
someone who has aided terrorists without proof that he had to know of
the specific crime.\7\ We have on several occasions flown back to the
U.S. for trial terrorists arrested by U.S. intelligence or law
enforcement half-way around the world.\8\ In our courts there is no
available exclusionary rule or other defense for a non-American
searched or captured abroad, even if the search or arrest did not
comply with the requirements of the Fourth (or any other) Amendment for
searches and seizures in the United States.\9\
---------------------------------------------------------------------------
\4\ E.g., Hostage Taking Act, 18 U.S.C. Sec. 50 U.S.C.
Sec. Sec. 2331-2332 (2001) (killing of U.S. citizens abroad).
\5\ Foreign Intelligence Surveillance Act, 50 U.S.C.
Sec. Sec. 1801-1811 (2001).
\6\ Classified Information Procedures Act, 18 U.S.C. Sec. Sec. 1-16
(2001).
\7\ Director of Public Prosecutions for Northern Ireland v.
Maxwell, [1978] 3 All E.R. 1140. See also Regina v. Bainbridge [1960] 1
Q.B. 129.
\8\ E.g., U.S. v. Yunis, 924F.2d 1086, 1089 (D.C. Cir. 1991);
Christopher Drew, FBI Captures Lebanese Hijacking Suspect at Sea,
CHICAGO TRIBUNE, Sept. 18, 1987, at 1.; Christopher John Farley et al.,
Going Without a Prayer: An Inside Look at How the FBI and CIA Nabbed an
Infamous Suspect After a Global, Four-Year Manhunt, TIME, June 30,
1997, at 34.
\9\ U.S. v. Verdugo-Urguides, 494 U.S. 259 (1990); U.S.
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Using these well-developed capacities, we have had remarkable
success in trying and convicting the terrorists responsible for the
bombings of the World Trade Center in 1993 and our embassies in Kenya
and Tanzania. I have a hard time thinking of the prosecutorial benefits
of military tribunals over civilian tribunals so fully empowered as
ours, except that the military tribunals could, by selection or message
from higher authority, use their secrecy, their lesser burden of proof,
and the possibility of conviction by a two/thirds vote to convict
without even the evidence that a jury of angry, patriotic Americans
would demand.
The costs. What then are the costs of authorizing for all non-
citizens indefinite detention without trial or, alternatively, a secret
military trial with secret or untested evidence before a military panel
chosen and evaluated by their commander, without judicial review of the
adequacy of the evidence. To these must be added a possible death
sentence for any of about 18 million non-citizens living in the United
States (about one-third of whom may have violated their terms of entry)
\10\ whenever the executive decides they have engaged, or are engaged,
in terrorism related or unrelated to al Qaeda. I will list only a dozen
such costs.
---------------------------------------------------------------------------
\10\ The 200 census counted 28.4 million foreign-born residents of
whom 37.4% were citizens. We had 24 million vists from tourists in 1999
plus 6.5 students, business, and worker visits.
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(1) The authorization claims the critical powers--executive
detention unreviewable in any court and secret military trials--of a
police state, at the unreviewed discretion of the executive, over
millions of individuals lawfully living in the United States, based on
an unreviewed suspicion of unidentified forms of support of undefined
political violence with an unspecific international connection. In
doing so it will undermine the support and loyalty of many millions
here in the U.S. and their relatives abroad.\11\ At the same time it
will stifle speech and legitimate dissent among those covered.
---------------------------------------------------------------------------
\11\ Greg Winter, Some Mideast Immigrants, Shaken, Ponder Leaving
U.S., N.Y. TIMES, Nov. 23, 2001, available at www.nytimes.com: Jodi
Wilgoren, Swept Up in a Dragnet, Hundreds Sit in Custody and Ask,
`Why?', N.Y. TIMES, Nov. 25, 2001, available at www.nytimes.com.
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(2) If sustained by Congress and the courts, it would create a
precedent very likely to be applicable to citizens. The Supreme Court
declined to draw any distinction between citizens and aliens in Ex
Parte Quirin. The ``military order'' itself is careful to preserve the
``lawful authority of the Secretary of Defense. . .to detain or try any
person. . .not subject to this order.''
(3) It relegates the Congress as well as the courts to a position
of impotence in addressing one of the most fundamental questions about
how much of our democratic tradition we will preserve. Nothing in the
joint resolution of September 18, 2001, that authorized the use of
``necessary and appropriate'' force, remotely considers (approves or
rejects) military detention and secret trials in the United States.\12\
---------------------------------------------------------------------------
\12\ Unlike the ``military order,'' the joint resolution is also
limited to those thought to be involved with the attacks of September
11th.
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(4) It deprives the U.S. of its historic claim of moral leadership
among the world's nations in matters of fairness to individuals,
leaving us in the position of encouraging the outrages of dictators
like President Mugabe.\13\ It will make more difficult future efforts
at military coalition-building.
---------------------------------------------------------------------------
\13\ Fred Hiatt, Democracy: Our Best Defense, WASHINGTON POST, Nov.
19, 2001, at A21.
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(5) It has denied us, and will deny us, the benefits of legal
cooperation with our closest allies in the form of extradition and
mutual legal assistance.\14\
---------------------------------------------------------------------------
\14\ Sam Dillon & Donald G. McNeil, Jr., A Nation Challenged: The
Legal Front; Spain Sets Hurdles for Extractions, N.Y. TIMES, Nov. 24,
2001, at A1.; William Safire, Essay: Kangaroo Curts, N.Y. TIMES, Nov.
26, 2001, at A17.
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(6) It will create resentment, fear, and suspicion of the military,
our most respected profession, undoing much of the benefits of more
than a century during which the Posse Comitatus Act has protected the
military from public fear and resentment.\15\
---------------------------------------------------------------------------
\15\ Posse Comitatus Act, 18 U.S.C. Sec. 1385 (2001).
---------------------------------------------------------------------------
(7) It will end a twenty-year successful effort to win respect and
trust for a long-ridiculed military justice system.
(8) It undermines public confidence in the ability of our law
enforcement to handle cases of international terrorism--confidence
hard-earned with the patient, intelligent legislative help of the U.S.
Congress.
(9) It will leave lasting doubts about the honesty of convictions
in the wake of secret trials with secret evidence.\16\
---------------------------------------------------------------------------
\16\ C.f. Boris I. Bittker, The World War II German Saboteurs/Case
and Writ of Certiorari before judgment by the Court of Appeals: A Tale
of None Pro Tone Jurisdiction, 14 Const. Commentary 431, 451 nl. (1997)
(citing Eugene Rachlis, They Came to Kill: The Story of Eight Nazi
Saboteurs in America (Random House, 1961, 156-159)). In 1942, eight
Nazi Saboteurs were arrested on U.S. soil and tried before a Military
Commission. The FBI attributed the unmasking of the Saboteurs to the
extraordinary sleuthing of its agents althought the proximate cause of
the capture was the defection of one of the saboteurs.
---------------------------------------------------------------------------
(10) It will teach American children, particularly the children of
immigrants, that this is not a nation ``with liberty and justice for
all.''
(11) If we are at ``war,'' the President's order directly conflicts
with our obligations under Article 102 of the Geneva Convention on
Prisoners of War that requires trials of prisoners of war, even for war
crimes, only under ``the same procedure'' as we use in Courts Martial
of our own soldiers.\17\
---------------------------------------------------------------------------
\17\ For a Court Martial, as well as for any other properly
authorized military tribunal, he is directed--by the very statute on
which the claimed authority for the ``military order'' of November 13,
2001 is based--to ``apply the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in the
United States district courts ``so far as he considers practicable.''
---------------------------------------------------------------------------
(12) Unless a secret military tribunal whose personnel are chosen
and later evaluated by the executive is an ``independent and impartial
tribunal,'' it also violates Article 14 of another treaty we have
signed and ratified (The International Covenant on Civil and Political
Rights). A non-independent tribunal is legal only if the President
determines and announces that we are in a situation ``which threatens
the life of the nation.'' \18\
---------------------------------------------------------------------------
\18\ Article 14, International Covenant of Civil and Political
Rights, 999 U.N.T.S 171, entered into foce Mar. 23, 1976; United
National General Assembly Resolution 2200A [XX1]. 16 December 1966.
---------------------------------------------------------------------------
The drafting. Bypassing Congressional and judicial review, the
order is drafted with an appalling carelessness as to its over-broad
scope. Most citizens and commentators think that it applies only to
military or terrorist leaders captured abroad who have violated the
laws of war. At the President's discretion:
1. It applies within the Unites States to 18 million non-citizens
and it applies throughout the world to the citizens of every nation.
2. It applies to acts committed decades ago and to persons only
remotely connected to those acts.
3. It allows indefinite discretionary detention without plans for
any trial, even before a military tribunal.
4. It attempts to suspend habeas corpus without Congressional
action or compliance with the Constitutional requirements of ``invasion
or rebellion.''
5. It has many applications the Supreme Court will not permit under
the Court's requirement, where civil courts can operate, of a violation
of the law of war. For example, harboring an ex-terrorist is not a
violation of the law of war (or else our officials who have hosted
leaders of other nations who fall in this category are war criminals.)
6. It allows the President to decide when a threatening form of
group crime becomes a war justifying detention and military tribunals,
and to exercise that authority, without Congressional sanction. Using
language with the sweep of the commerce clause of our Constitution, he
has exercised that judgement by applying the order to relatively minor
acts of terrorism (any act that carried ``adverse effects on the U.S..
. .economy '') and not just to massive attacks such as those of
September 11, 2001.
My conclusion is simple. It should be a proud and patriotic
responsibility of the Congress to protect the people of the United
States against the unnecessarily dangerous path of recourse to military
tribunals and detention without trial which the President has taken in
response to public fears. President Bush has said that it is our
traditional freedoms that al Qaeda, and its like, fear and envy. We
must be prepared to fight for these traditions admired around the
world. We must not surrender any fundamental liberty without manifest
necessity and Congressional review. There is no such necessity and
there has been no such review in the case of President Bush's
``Military Order'' of November 13, 2001.
Appendix A
Western European countries have taken cautious steps to eliminate
the risks of intimidation. Germany centralized the prosecution and
adjudication functions in the case of terrorism, providing special
protection for those responsible. For terrorist trials, France
eliminated the participation of a majority of lay individuals who act
as fact-finders in felony trials, substituting a panel of judges all
but one of whom is anonymous. More dramatically, trials of narco-
terrorists and other terrorists in Colombia take place before a single
judge whose identity is carefully hidden.
Closest to the U.S. common law tradition was the situation of Great
Britain in Northern Ireland. The British ?Diplock Courts? are perhaps
the most famous of the special anti-terrorism courts in operation. Lord
Diplock headed a Commission to evaluate the operation of the Northern
Ireland justice system when opposition to internment without judicial
trial had led the government to seek alternative ways of processing
court cases involving paramilitaries. He concluded that intimidation of
jurors by the defendants and their colleagues and ?perverse? verdicts
rendered by jurors sympathizing with the cause of the government?s
opponents made jury trials impractical.
The Diplock Commission recommended implementation of special
``Diplock'' courts for the trial of specified offenses such as murder,
weapons offenses, bombings, and the like. Such courts are presided over
by a single judge but without the normal jury. The trials have been
public; defendants have had legal representation and could cross-
examine witnesses against them. The standard for conviction has
remained guilt beyond a reasonable doubt. Defendants have an unfettered
right to appeal if found guilty. Judges are required to provide a
written opinion regarding their views of the law and the facts of the
case when rendering a verdict. Their reasoning can be challenged on
appeal.
Britain's attorney general is empowered to decide, at the request
of defense counsel, if specific cases involving scheduled offenses
should be ``certified out'' as not being political in nature. Cases
that are ``certified out'' revert back to the regular jury trial
courts. In 1995, the attorney general approved 932 of 1,234
applications for removal from Diplock Court. In that year 418 people
were tried for scheduled offenses in Diplock Court and 395 were
convicted (360 of these pleaded guilty). Of the 58 defendants who
pleaded not guilty, 23 (40%) were found not guilty at trial.
These uses of special courts have been careful and their purpose,
avoiding intimidation of fact finders, is important. But special courts
always create special fears because the motivation for special courts
has not always been merely to deal with intimidation. Secret courts,
instituted by the military to further its purposes have been used in
Guatemala, Argentina, Chile, and elsewhere. The purpose was less to
deal with threats than to assure that the fact finders would be
sympathetic to the views of the government.
Chairman Leahy. We are going to ask some questions and give
you a chance to give us more.
Mr. Bell?
STATEMENT OF GRIFFIN B. BELL, SENIOR PARTNER, KING & SPALDING,
AND FORMER ATTORNEY GENERAL OF THE UNITED STATES
Mr. Bell. I have filed a statement, so I am just going to
be very short. I am posing it by trying to answer questions
that have been raised in the public arena.
Did the President have power to issue this order setting up
military tribunals? I don't think there is any doubt that he
had power. I don't think there is anything irregular about it.
I don't think there is anything illegitimate about it.
I picked out three cases. First, in the Revolution, Major
John Andre was tried by a military tribunal. He was the
negotiator with the traitor Benedict Arnold. After the Civil
War, the commander of the Andersonville Prison camp, Captain
Wirtz, was tried by a military tribunal in Washington, although
he lived in Georgia, and was executed. We tried the German
spies that everyone has been talking about, but we also tried
General Yamashita after World War II ended in a military
tribunal convened by General MacArthur, not by the President
but by General MacArthur. So military tribunals are not
uncommon in time of war.
Now, is the focus of the President's order too broad? I
think not. First, it has to be--what he does, if he puts
someone under this order, it has to be in the interest of the
United States. He has to have reason to believe that the person
is a member of Al Qaeda or is engaged in international
terrorism acts or has harbored someone who did.
What procedures are to be followed by the military court, a
tribunal? We don't know yet because they haven't been
promulgated, but there are some things in the order that tell
us some elements of due process. The order says that the
defendant will be afforded counsel, there will be a record made
of the trial, and that the evidence will be that which has
probative value to a reasonable person. Incidentally, the same
standard that was set out by General MacArthur when General
Yamashita was tried.
Will the trial be without a jury? Yes. This is true with
our own soldiers who are prosecuted under the Code of Military
Justice. There is no jury. It is hard for me to understand why
we would want to give someone charged with international
terrorism a jury when our own soldiers would not have a jury if
they were being prosecuted.
We can assume that military officers serving on the
military court martial or tribunal would be no less fair than a
civil jury. I read a comment by Secretary of War Stimson who
said during World War II in a biography of General Marshall on
that very subject, when he said, ``All the civilians wanted to
shoot the Germans after the war, but the military wanted to
have fair trials.'' So I think we shouldn't assume that juries
somehow or another are fairer than military officers.
Will the trial be secret? No, and I think it is nonsense to
contend otherwise. The order does not say so. The order
protects classified information. When I was Attorney General,
we began to prosecute spies or espionage cases again after a
long period of time, and we had to deal with courts on how to
try cases where we had to protect sources and methods and
foreign intelligence, and we were able to do that. And the idea
was that lawyers every day tried trade secret cases, and you
don't make the trade secrets public. So we found ways to do
that. We tried people who, for example, had stolen plans from
the CIA and sold them to the Russians for satellite plans, and
we tried a jury trial without making the plans available to the
public. So we know how to try cases of this kind. I think that
is what it means, but the Secretary of Defense might very well
spell out what that means.
What of the conviction by a two-thirds vote? If we were
trying one of our own servicemen, everything would be by two-
thirds vote, every crime, except life, which would be three-
fourths, and death, which would be unanimous. That is a
debatable question, a fair question to debate, and the Code of
Military Justice might very well be considered by the Secretary
of Defense.
What is the burden and quantum of proof? I would say it
would be reasonable to follow what was used in General
Yamashita's trial.
Lastly, what of the right to appeal? In military tribunals,
there is no general right of appeal, but this order does not
preclude writs of habeas corpus, and it is beyond my
imagination that you couldn't use a writ of habeas corpus if
someone was tried in the United States. I think you cannot use
a writ on a decision by Justice Jackson for non-resident aliens
or a case tried in some other country. I think that is settled.
But in this country, no.
I would like to suggest one thing to the Committee. I have
high regard for the Judiciary Committee. I have appeared here
many times. I think it would be well to wait until the
Secretary promulgates these orders, rules, and regulations
before you finally conclude this matter. Some of these
questions probably will be cleared up at that time, and I think
we need to give the Secretary of Defense a chance to allay a
lot of the worries that people have.
Thank you.
[The prepared statement of Mr. Bell follows:]
Statement of Hon. Griffin Bell, Senior Partner, King & Spalding and
Former Attorney General of the United States
I. Subjecting terrorists to trial by military tribunal is completely
consistent with the United States Constitution and with this nation's
historical precedent.
As I wrote in an editorial that appeared in the Wall Street Journal
two weeks after the September 11th attacks, the President's
responsibility to protect our citizens from foreign terrorists
implicates very different concerns from those raised by our standard
law enforcement process as administered by our civilian courts.
There can be no doubt that the perpetrators of the September
11th attacks are more than simple criminals. By their level
of organization, their access to vast reservoirs of foreign resources,
their professed dedication to the destruction of the United States, and
their strategy of targeting and slaughtering our civilian population,
it is plain that these terrorists, and those who support them, are
nothing less than combatants engaged in an armed conflict with the
United States.
Congress has acknowledged the existence of this armed conflict,
passing on September 18, a joint resolution authorizing the President
to use armed force against the perpetrators of the September
11th attacks, in light of the ``unusual and extraordinary
threat to the national security and foreign policy of the United
States.''
In this context, when fulfilling his responsibility to protect our
citizens from armed combatants against the United States, the
President's authority flows, not from his role as the nation's chief
law enforcement officer, but rather from his role as Commander-in-Chief
of the nation's Armed Forces.
In exercising his authority as Commander-in-Chief, the President is
not bound to afford captured combatants the same protections afforded
to criminal defendants by the Bill of Rights.
It is absurd to suggest that the U.S. military must observe the
same civil liberties in its interaction with foreign soldiers that our
law enforcement agents must observe in their interactions with common
criminal defendants. While a U.S. serviceman must abide by certain
domestic and international rules of engagement when conducting a war,
he is certainly not responsible for conforming his actions to the U.S.
Constitution. A U.S. soldier need not obtain a search warrant prior to
entering an enemy building, nor must he advise a captured soldier of
his right to retain an attorney.If an enemy combatant is taken into
custody, there remain domestic and international norms that must be
observed in the treatment of that prisoner. However, trial by jury in a
civilian court is not a right enjoyed by such a prisoner. Neither the
United States Constitution, nor any international treaty, imposes the
incongruous obligation that a captured combatant must receive a trial
in a civilian court.
Nor has it been our practice, at any time during the history of
this country, to attempt to provide trials for captured combatants in
our civilian courts.
Military tribunals, such as those authorized by the President's
recent Executive Order, are the traditional means by which foreign
combatants, including terrorists, have, historically, been brought to
justice.
Military tribunals were used extensively by this country during and
after World War II. Hundreds of German and Japanese prisoners were
tried by military tribunals for violations of the law of war following
the end of that war. In 1942, President Franklin Roosevelt convened a
military tribunal in Washington, DC, to try eight Nazi saboteurs who
were arrested in New York and Chicago after embarking on our East Coast
from German submarines.
During and after the Civil War, military commissions were used to
try war criminals, including the individuals who participated in the
assassination of President Lincoln.
Military tribunals were used to try war criminals during the
Mexican-American War, various wars against the American Indians, and
the American Revolution.
The Supreme Court has consistently approved of military tribunals,
explaining in one case, ``Since our nation's earliest days, such
commissions have been constitutionally recognized agencies for meeting
many urgent governmental responsibilities related to war.'' [Madsen v.
Kinsella, 343 U.S. 341, 346-47 (1952)]
Congress has expressly authorized the use of such tribunals in
Title 10 of the United States Code [10 U.S.C. Sec. 821], and has
provided that the President shall have the power to prescribe the
procedures to be used [10 U.S.C. Sec. 836].
There are some critics who have argued that certain rights, such as
the right to a trial by jury and the right to indictment by grand jury,
are essential elements of the ``American Way,'' and must be provided in
all contexts, even to enemy prisoners of war. To these critics, I say
that our own servicemen are subject to the Uniform Code of Military
Justice, which does not provide for such rights. It would indeed be
peculiar to insist that captured enemy combatants are entitled to
greater rights than those provided to our own soldiers.
Other critics have predicted that the procedures established for
these tribunals may amount to little more than a ``kangaroo court,''
with rules that are so slanted against a defendant that justice will
not be served. To these critics, I say your criticism is, as of now,
unfounded. The Secretary of Defense has yet to issue a code of
procedures for these tribunals. This nation has, in the past, conducted
trials by military tribunal that meet all reasonable standards of both
substantive and procedural due process. Such tribunals have, in the
past, resulted in both convictions and acquittals of the individuals
charged with violations of the law of war. There is no reason to
believe that our Secretary of Defense will establish patently unfair
procedures for trials pursuant to the President's directive.
II. Considerations of national security should properly be weighed as
the government determines whether to divulge the identities of
individuals who have been detained in connection with the investigation
into the September 11th attacks.
There have been allegations that the Justice Department has acted
improperly in failing to divulge publicly to the press the identities
of all persons being detained in connection with the investigation into
the September 11th attacks.
I have seen no evidence to suggest that the Justice Department has
acted improperly in this respect.
In his capacity as Commander-in-Chief of the armed forces, the
President and his cabinet must retain the right to designate certain
information as classified in order to protect our national security and
to preserve the integrity of ongoing criminal investigations.
The Freedom of Information Act, which is the primary vehicle for
ensuring the openness of our democratic government, expressly
recognizes the government's authority to withhold certain information
to protect national security and to preserve the integrity of ongoing
criminal investigations.
It is perfectly reasonable to expect that releasing the names of
those individuals being detained in connection with this investigation
would have a negative impact on our efforts to track down other
terrorists and to protect against further terrorist attacks. While I am
not privy to the details of the current investigation, my experience as
Attorney General leads me to believe that such information would be
extremely useful to those terrorists who remain at large.
The fact that the Justice Department has not provided this
information to the press does not mean that the detainees are powerless
to vindicate their rights. It is my understanding that each of the
detainees in question is either believed to be here in violation of our
immigration laws, or is being held on a material witness warrant. The
Attorney General has represented that each of these detainees has had
access to legal counsel should they wish to challenge the basis for
their detention. Presumably, counsel for any one of the detainees could
contact the press if it were in the interest of that detainee to do so.
Moreover, as with any case in this country in which a person has
suffered a deprivation of liberty, each of these detentions is subject
to judicial review.
Also, it would seem to me that our government would be committing a
serious violation of the privacy of these detainees if, for example,
the Justice Department published a list of the detainees in the
Washington Post or the New York Times.
In sum, I have no reason to believe that the Justice Department has
acted improperly in declining to release to the press the identities of
the detainees in connection with this investigation. The decision not
to release such information appears to have a sound basis grounded in
the operational necessities of conducting this war on terrorism.
summation
1. The President has acted under the common law of war. Although we
have not declared war since World War II, war has been authorized by
the Congress through the authority to use armed forces as they are now
being used in Afghanistan. Public Law 107-40. Congress authorized
military tribunals in Sections 821 and 836 of Title 10 of the United
States Code. Military tribunals have been used throughout the history
of our nation. Major John Andre was executed after trial by a military
commission during the Revolutionary War; Captain Wirtz, the Commander
of Andersonville Prison, was tried by a military tribunal following the
Civil War and was executed. Such tribunals were used in the Civil War
and in World War II. President Roosevelt convened a military tribunal
to try the German spies and General Yamashita was tried at the end of
the war by a military tribunal constituted by General MacArthur. It is
simply incorrect to say that there is anything irregular or
illegitimate about President Bush constituting military tribunals in
the current war on terrorism.
2. Is the focus of the Order too broad? I think not. It applies
only to non-citizens selected by the President. The President
determines from time to time in writing that it is in the interest of
the United States that an individual be subject to the Order if there
is reason to believe that he or she is or was a member of the al Qaeda
or has engaged in, aided or abetted or conspired to commit acts of
international terrorism or acts in preparation therefor that have
caused, threatened to cause or have as their aim to cause injury to or
have adverse affects on the United States, its citizens, national
security, foreign policy or economy or has knowingly harbored one or
more individuals described in Paragraphs (i) or (ii) of Section 2(a)(i)
of the President's order. This seems to me to be a narrow focus.
3. What procedures are to be followed by the military court? These
are yet to be promulgated by the Secretary of Defense. The terms of the
order are such that we can be sure that any defendant will be afforded
defense counsel, that a record will be made of the trial, that evidence
will be limited to that which has probative value to a reasonable
person.
4. Will trials before the military tribunal be without a jury? Yes.
That is true also when our own soldiers are tried under the Code of
Military Justice. There is no jury. We can assume that military
officers serving on a military court martial or tribunal would be no
less fair than a civil jury. See Comment of Secretary Stimson,
Paragraphs 467 and 468 in Pogue's George L. Marshall: Organizer of
Victory.
5. Will the trials be secret? No. It is nonsense to contend
otherwise. What the Order provides is that classified information will
be protected. We have been doing this for many years in espionage
cases, which are tried in the federal courts. Classified material is
protected without the denial of rights to defendants. It is in the
interest of the nation to protect sources and methods in foreign
intelligence. We await the procedures to be promulgated by the
Secretary of Defense; it may well be that there will be procedures for
protecting classified information as it is contemplated by the
President's Order.
6. What of the conviction by a two-thirds vote? In the Code of
Military Justice, which applies to our own servicemen, a two-thirds
vote of those constituting a general military court martial applies in
any sentence less than life imprisonment or death. In the case of life
imprisonment, the Code provides for a three-fourths vote for
conviction, and for death there must be a unanimous vote. Has the
President abused his authority as Commander in Chief by providing for a
two-thirds vote in the case of life imprisonment or death? I think not,
although it can fairly be argued that the Code of Military Justice
standard is a precedent to be considered.
7. What is the quantum of proof? In the trial of General Yamashita
following World War II, the burden and quantum of proof for the
tribunal constituted by General MacArthur was evidence proving or
disproving the charge which, in the opinion of the tribunal, would have
probative value in the mind of a reasonable person. Here, again, we
should await the quantum and burden of proof that is set out in the
procedures to be established by the Secretary of Defense.
8. Lastly, what of the right of appeal to the courts? The Order
provides an appeal to the President or, by his order, to the Secretary
of Defense. The Order purports to take away the jurisdiction of all
other courts, state or federal, for these convictions. The President's
order contains no reference to the writ of habeas corpus, and I believe
that there is no basis for construing the order as an attempt to
suspend that right. The Constitution (Article I, Section 9) provides
that not even Congress can suspend the Writ of Habeas Corpus unless,
when in cases of rebellion or invasion, the public safety may require
it.
9. There have been a number of cases in the Supreme Court
considering whether Writs of Habeas Corpus will lie from military
tribunals to federal courts. In some cases, the order constituting the
tribunal was silent as to the use of the writ, but Justice Jackson for
the Court in Johnson v. Eisenstranger, 339 U.S. 763 (1950), dealt
extensively with the question of whether non-resident enemy aliens
could even use the writ. As to those cases which involve U.S. citizens,
or aliens on U.S. soil, the case of In re Quirin, 317 U.S. 1 (1942),
plainly established that habeas corpus review was an appropriate means
for defendants to test the jurisdiction of military tribunals.
With due deference to this important Committee carrying out your
oversight function and your legislative function, I suggest that it
would be well to adjourn this hearing pending receipt of such orders
and regulations by the Secretary of Defense, as are contemplated by
Section 4(b) and (c) of the President's Order as well as the meaning of
the provision in Section 4(a) of punishment ``in accordance with the
penalties provided under applicable law.''
Chairman Leahy. Thank you, General Bell. I appreciate your
being here, and you bring back memories of my early days in
this Committee where I think my seat was probably so far back
that you never even noticed me because I was probably behind
you. I didn't care much for the seniority system back then. Now
that I have studied it 25 years, I like it a lot better.
Professor?
STATEMENT OF SCOTT L. SILLIMAN, EXECUTIVE DIRECTOR, CENTER ON
LAW, ETHICS AND NATIONAL SECURITY, DUKE UNIVERSITY SCHOOL OF
LAW
Mr. Silliman. Mr. Chairman, Senator Hatch, Senator Specter,
the President's order cites as one of its legal predicates
Article 21 of the Uniform Code of Military Justice. That
provision, I submit, creates no new authority in the President
as to military commissions. It merely acknowledges that in
establishing the jurisdiction for courts-martial, Congress did
not deprive these commissions, another type of legal tribunal,
of concurrent jurisdiction with respect to offenses which, by
statute or by the law of war, may be tried by these
commissions.
As to statutory offenses, Congress clearly has the
authority under Article I, section 8, clause 10, to define and
punish offenses against the law of nations, of which the law of
war is a subset. But it has done so only in a very restricted
manner, notably, in the War Crimes Act of 1996, none of whose
provisions are applicable to what we are dealing with in this
instance. So we must, therefore, look to the law of war for the
predicate authority for military commissions.
Customary international law recognizes the right of a
military commander to use military commissions to prosecute
offenses against the law of war, offenses which, by definition,
must take place within the context of a recognized state of
armed conflict. I maintain that shortly before 9 o'clock in the
morning on Tuesday, September 11th, we were not in a state of
armed conflict and we did not enter into a state of armed
conflict until some time thereafter, certainly on or after the
7th of October.
Some argue that the events of that horrendous Tuesday
demand a reappraisal of customary international law concepts
regarding the distinction between state and non-state actors
and that, irrespective of whether the attacks were carried out
by one, 19, or a greater number of terrorist non-state actors,
that they should nonetheless be considered acts of war. I
cannot agree in that. The answer lies in legislation rather
than an instantaneous sweeping aside of traditional customary
law concepts.
Articles 18 and 21 of the Uniform Code of Military Justice
could be amended to allow for the use of military commissions
or even courts-martial to try offenses, not just against the
law of war but against the law of nations, and could include
the broader category of offenses such as we are dealing with on
September 11th.
A word about the much cited case of Quirin involving the
eight German saboteurs. Although the Supreme Court did sanction
the use of a military commission in that instance, it did so in
the clear context of a formally declared war, saboteurs
entering this country surreptitiously and illegally at a time
frame only 7 months after the attack on Pearl Harbor, where the
vulnerability of this country was shockingly realized. That
realization of vulnerability also gave birth to the infamous
internment camps for Japanese Americans sanctioned by the
Supreme Court in the Korematsu case. The Korematsu case is a
precedent, Mr. Chairman, that I suggest few would want to bring
forward. I suggest that Quirin, like Korematsu, can be extended
too far beyond its context.
I, therefore, see a weakness in the legal predicate for
using military commissions to prosecute offenses occurring on
September 11th, and I believe that that weakness could result
in a finding that such commissions would not have jurisdiction
over those offenses, the September 11th offenses.
I also have policy concerns, Mr. Chairman. I acknowledge
the convenience and perhaps the prudence of commissions sitting
overseas for terrorists captured incident to combat in
Afghanistan and the Supreme Court opinions can be read as
precluding judicial review in those cases. That is the
Eisentrager case. But as to military commissions sitting in
this country prosecuting resident aliens, I see not only an
adverse impact upon our international credibility, but also a
potential tarnishing of a proud heritage of 50 years of
military justice under the Uniform Code of Military Justice.
Senators Kennedy and Kohl have both mentioned the Berenson
case, 1996, in Peru. I would suggest that there appears to be
little difference between the lack of protections afforded her
in Peru and the minimal due process standards set out in the
President's order.
We should expect a reproach from the international
community for hypocrisy since we continually tout ourselves as
a nation under the rule of law. I believe such a criticism
could result in a fracturing of the disparate coalition that
has been forged to wage a long-term campaign against terrorism
worldwide, a campaign which must necessarily go farther than
just the use of military force.
Secondly, many in this country do not accurately perceive
the distinction between courts-martial under the Uniform Code
of Military Justice and military commissions to be empaneled
under the President's order. On Sunday's televised news program
``Face the Nation,'' former Deputy Attorney General George
Terwilliger stated that ``there is a fundamental misconception
that somehow a military court cannot be just. Our own soldiers
and airmen are subject to military justice on a regular basis.
The military can provide fair trials.''
That implies, Mr. Chairman, that military commissions will
generally follow the same rules of procedure and modes of proof
of courts-martial. As this Committee knows, that is not the
case. Regrettably, this confusion is widespread, and I have a
great concern that in pursuing the use of military commissions,
especially in this country, this blurred distinction could
sully the image of military justice under the code, a very fair
and impartial system of which we have always been proud.
I look forward to answering any questions you might have,
Mr. Chairman.
[The prepared statement of Mr. Silliman follows:]
Scott L. Silliman, Executive Director, Center on Law, Ethics, and
National Security, Duke University School of Law
Mr. Chairman, Senator Hatch and members of the Committee. My name
is Scott L. Silliman and I am the Executive Director of the Center on
Law, Ethics and National Security at the Duke University School of Law.
I am also a senior lecturing fellow at Duke and hold appointments as an
adjunct professor of law at Wake Forest University, the University of
North Carolina, and North Carolina Central University. My research and
teaching focuses primarily in the field of national security law. Prior
to joining the law faculty at Duke University in 1993, I spent 25 years
as a uniformed attorney in the United States Air Force Judge Advocate
General's Department. During Operations Desert Shield and Desert Storm,
I served as the senior Air Force attorney for Tactical Air Command, the
major command providing the majority of the Air Force's war-fighting
assets to General Schwarzkopf's Central Command.
I thank you for the invitation to discuss with the Committee some
of my concerns with respect to the inherent tension which exists in
successfully defending against terrorism while at the same time
preserving our freedoms. In the event that members of al-Qaeda are
captured or surrender incident to the military campaign in Afghanistan,
or if individuals suspected of complicity in the attacks of September
11th are arrested in this country or elsewhere, there are
several prosecutorial options available to the government. These are
(1) trial in the federal district courts, as was done with regard to
those responsible for the initial attack upon the World Trade Center in
1993 and upon our embassies in Kenya and Tanzania in 1998; (2) trial in
the courts of any other country, under the principle of universal
jurisdiction; (3) trial before some type of an international tribunal,
either one currently in being or one to be established in the future;
or (4) trial by military commission or other military tribunal
established by the President in his capacity as Commander-in-Chief.
None of these approaches is optimal; all have problems and limitations
associated with their use. The President, however, has indicated his
intent to pursue the use of military commissions and, accordingly, my
comments will be restricted to the military order issued on November
13th which authorizes the detention, treatment and trial of
certain non-citizens in the war against terrorism. In particular, I
will discuss what I consider to be a weakness in the Administration's
argument regarding the President's legal predicate for authorizing the
use of military commissions with respect to the terrorist attacks on
September 11th, a weakness which I believe needs to be remedied by the
Congress through legislation. I will then discuss my policy concerns as
to the overall breadth of the current order and how I believe it could
adversely impact our international credibility as a nation under the
rule of law.
Authority of the President to Authorize Military Commissions
The military order of November 13th lists three
statutory provisions which, in addition to the President's
constitutional powers, are cited as authority for the order. These are
the Authorization for Use of Military Force Joint Resolution, signed by
the President on September 18, 2001, and Articles 21 and 36 of the
Uniform Code of Military Justice. As to the Joint Resolution, the key
operative language is contained in Section 2(a) which authorizes the
President ``to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on Sept 11,
2001, or harbored such organizations or persons, in order to prevent
any future acts of international terrorism against the United States by
such nations, organizations or persons.'' Section 2(b) declares that
Congress, through this resolution, is satisfying its own requirements
under the War Powers Resolution of 1973 regarding the need for a
specific statutory authorization approving the use of our armed forces
in this regard. There can be no doubt that the Joint Resolution is
meant to buttress and affirm the President's right as commander-in-
chief to use force in self-defense against a continuing threat, either
from a state or a non-state actor. This inherent right of self-defense,
clearly recognized in customary international law and codified (but not
supplanted) by Article 51 of the United Nations Charter, was reiterated
in United Nations Security Council resolutions 1368 of September
12th (Security Council Res. 1368, UN Doc. SC/7143) and 1373
of September 28th (Security Council Res. 1373, UN Doc. SC/
7158), both of which referred directly to the attacks of September
11th. It should be noted, however, that although there are frequent
references in the text of the Joint Resolution to ``terrorist acts''
and ``acts of international terrorism'', nowhere in the resolution, or
in the presidential signing statement, is there any mention or
characterization of the attacks of September 11th as acts of
war. They are clearly denoted as terrorist acts.
Under the Constitution, Congress was granted authority to make
rules for the government of the land and naval forces (Article I,
Section 8, Clause 14). It did so most recently through enactment of the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. Sec. Sec. 801 et
seq., in 1950. Article 21 of the Code, cited in the President's
military order, mentions military commissions but does so only in
acknowledging that the Code's creation of jurisdiction in courts-
martial to try persons subject to the UCMJ, does ``not deprive military
commissions...of concurrent jurisdiction with respect to offenders or
offenses that by statute or by the law of war may be tried by military
commissions, provost courts, or other military tribunals'' (10 U.S.C.
Sec. 821). A corresponding provision in Article 18 of the UCMJ,
although not cited in the military order, provides that ``(G)eneral
courts-martial also have jurisdiction to try any person who by the law
of war is subject to trial by a military tribunal and may adjudge any
punishment permitted by the law of war'' (10 U.S.C. Sec. 818). Articles
18 and 21 can only be read as reflective of Congress' intent, by
enacting statutory authority for trials by courts-martial and providing
for the concurrent jurisdiction of courts-martial with military
commissions, not to divest the latter of the jurisdiction that they
have by ``statute or by the Law of War''. The other provision of the
UCMJ specifically cited in the military order is Article 36, 10 U.S.C.
Sec. 836, which is a general delegation of authority to the President
to prescribe trial procedures, including modes of proof, for courts-
martial, military commissions, and other military tribunals. This
provision states that the President shall, ``so far as he considers
practicable, apply the principles of law and the rules of evidence'' as
generally used in criminal cases in federal district courts (10 U.S.C.
Sec. 836). In the military order, the President makes a specific
finding that using those rules would not be practicable in light of the
``danger to the safety of the United States and the nature of
international terrorism'' (Section 1(f), Military Order of November 13,
2001). This provision, therefore, has relevance only to the rules for
the conducting of military commissions, rather than to the authority
for establishing them.
Has Congress legislated as to war crimes, other than in the UCMJ?
Although the Constitution grants Congress authority to define and
punish offenses against the law of nations (Article I, Section 8,
Clause 10), it has done so only in a very limited manner through the
War Crimes Act of 1996 (18 U.S.C. Sec. 2441). That statute makes
punishable any grave breach or violation of common Article 3 of the
Geneva Conventions, any violation of certain articles of Hague
Convention IV of 1907, or a violation of the Protocol on Prohibitions
or Restrictions on the Use of Mines, Booby-Traps and Other Devices,
when either the perpetrator or the victim is a member of the United
States armed forces or a national of the United States. None of these
treaty provisions, violations of which are proscribed under the Act,
appear to be applicable with regard to the terrorist attacks.
Therefore, since the only relevant statutory references to military
commissions are contained in the UCMJ, and those only recognize
jurisdiction with respect to offenses proscribed by statute (of which
none apply here) or the law of war, a subset of international law, it
is the law of war to which we must now turn.
Customary international law clearly recognizes the authority of a
military commander to use military tribunals to prosecute offenses
against the jus in bello occurring during an armed conflict. The jus in
bello, regulating how war should be conducted, differs from the jus ad
bellum, which governs when the use of force is permissible by one state
against another. Our history is replete with instances of military
tribunals being used to deal with violations of the jus in bello in
times of armed conflict, with the trials of General Yamashita and the
German saboteurs during World War II being the most recent examples.
My concern with regard to the legal predicate for the application
of the President's military order is that violations of the law of
war--the jus in bello--do not occur within a vacuum; they must by
definition occur within the context of a recognized state of armed
conflict. I maintain that at shortly before 9:00 am on the morning of
September 11th, we were not in a state of armed conflict and we did not
enter into such a state until sometime thereafter. Therefore, with
regard to the attacks of September 11th, the principal event prompting
our armed response in self-defense against Osama bin Laden and the al-
Qaeda organization in Afghanistan, these are clearly acts of terrorism
in violation of international law, but not necessarily violations of
the law of war. If my premise is correct, then it presents an
impediment to using military commissions for the trial of those charged
with or complicit in those particular attacks, as distinguished from
charges relating to later events. Some may argue that the events of
September 11th demand a reappraisal of existing customary
international law concepts with regard to the distinction between state
and non-state actors and that, irrespective of whether the attacks were
carried out by one, nineteen, or a greater number of terrorist non-
state actors, these attacks should be considered, at the instant they
occurred, as nothing short of an act of war. I am unwilling to concur
in that argument and, as will be discussed later, I believe the answer
to this problem lies in legislation rather than an instantaneous
sweeping aside of longstanding principles of customary law.
In many of the Administration's pronouncements in support of the
military order of November 13th, the Supreme Court opinion in Ex Parte
Quirin, 317 US 1 (1942), is mentioned. I submit that Ex Parte Quirin,
the case involving the eight German saboteurs who, in 1942, landed on
our shores in Florida and Long Island with intent to do damage to our
defense facilities, bears closer scrutiny than it has been given by
military commission proponents. The Supreme Court sanctioned the use of
a military commission to try the saboteurs, but did so in the context
where there was a formal declaration of war by Congress and the
individual saboteurs had entered this country surreptitiously. Even
though one of them, Haupt, claimed to be an American citizen by virtue
of the naturalization of his parents while he was still a minor, the
Court determined that such citizenship did ``not relieve him from the
consequences of a belligerency which is unlawful because in violation
of the law of war'' (Ex Parte Quirin, 317 U.S. 317, 37 (1942)).
Throughout Chief Justice Stone's opinion, there are references to the
power of the President as Commander-in-Chief in time of war. Ten years
later, Justice Robert Jackson, in his concurring opinion in the Steel
Seizure Case, would develop his oft-quoted analysis of presidential
powers in relation to those of Congress and determine that the
President's authority is at a maximum when he acts pursuant to an
express or implied authorization of Congress (Youngstown Sheet & Tube
Co. v. Sawyer, 343 US 579, 592 (1952)). The Congressional declaration
of war against Germany was just such a mandate for President Roosevelt,
especially bearing in mind that the eight saboteurs breached our shores
just seven months after the attack on Pearl Harbor where the
vulnerability of this country to attack was shockingly realized. That
realization of vulnerability also gave birth to the infamous internment
camps for Japanese Americans which were established during this very
same period and which were sanctioned by the Supreme Court in Korematsu
v. United States, 323 US 214 (1944), an opinion which virtually no one
claims has continued precedential value. Thus, I suggest that to draw
authority from Ex Parte Quirin for the military order of November
13th is to take the case out of the context of the very
specific circumstances in which it was decided, a declared war and a
Supreme Court desiring to maximize the President's authority to act to
defend our shores against an attack from state actors. No such context
exists now, no matter how much we proclaim the ``acts of war'' of
September 11th and try to make terrorists into state actors.
In conclusion of the first part of my statement, dealing with what
I consider a weakness in the argument for the President's legal
authority to use military commissions to prosecute terrorists for
offenses against the war of war occurring on September 11th,
I submit that this weakness can be remedied, certainly as to future
acts of terrorism which do not reach to the level of being offenses
against the law of war. If Congress were to enlarge the scope of
Articles 18 and 21 of the Uniform Code of Military Justice by either
changing the words ``law of war'' to ``law of nations'', thereby
incorporating acts such as those of September 11th, or by inserting
additional language setting forth specifically denoted acts of
terrorism, such an amendment would empower military commissions
(Article 21) and courts-martial (Article 18) to prosecute acts of
terrorism outside the context of a recognized state of armed conflict.
As to the use of courts-martial, however, this would necessitate
pretrial, trial and post-trial procedures, including modes of proof, as
prescribed in the Manual for Courts-Martial, Exec. Order 12960, 63 Fed.
Reg. 30065 (June 2, 1998), unless the President, acting under the
Congressional delegation of Article 36 of the Code, were to modify
those procedures, as he has done in the November 13th
military order.
Policy Concerns Regarding the Use of Military Commissions
Mr. Chairman, my comments to this point have reflected a specific
legal concern regarding the Constitutional predicate for the President
to authorize the use of military commissions. I would now like to share
with the Committee my more general policy concerns regarding the choice
of military commissions as against other prosecutorial forums. I should
say at the outset that my area of greatest concern is with respect to
military commissions sitting in the United States and prosecuting
resident aliens who entered this country legally and whose only offense
might be that they are, or were at some time in the past, members of
al-Qaeda. I acknowledge the convenience and possible prudence of
commissions sitting in overseas areas, especially in a theater of
military operations, for the prosecution of those members of al-Qaeda
who are captured incident to combat in Afghanistan, and I think an
argument could certainly be made that the Supreme Court's opinion in
Johnson v. Eisentrager, 339 U.S. 763 (1950) would preclude judicial
review by the Article III courts over such commissions held overseas.
The concept of military commissions sitting in this country is another
matter.
The administration has evidenced frustration with what it perceives
to be restrictions and limitations that seemingly hinder prosecutors in
attempting to bring terrorists to trial in our federal district courts.
Mention has been made of the rules governing disclosure which would
compel release of sensitive intelligence information. The lengthy
trials of those convicted of the 1993 bombing of the World Trade Center
and the 1998 attacks upon our embassies in Africa are cited as examples
of the inability of the federal district courts to adequately cope with
trials of terrorists. Further, it is argued that a criminal justice
system which incorporates rehabilitation and reincorporation into
society as part of the sentencing process is ill-suited to deal with
those whose zealous religious beliefs idealize martyrdom. I suggest
that these arguments are not necessarily persuasive. Congress has
provided tools for prosecutors to deal with classified information in
criminal trials, notably the Classified Information Procedures Act, 18
U.S.C. App Sec. 1 et seq. (1980), and the two prior successful
convictions of al-Qaeda terrorists are indicative that it can be done,
no matter how problematic for prosecutors the trials may be.
As to the option of using international tribunals, I concede that
no existing tribunal has jurisdiction over the terrorists. Neither the
ad hoc tribunal for the former Yugoslavia, nor the one for Rwanda,
could prosecute terrorists without the United Nations Security Council
having to make specific amendments to either of their respective
charters. The International Criminal Court, a UN sponsored treaty-based
tribunal, is not yet in existence and, even if a sufficient number of
states were able to quickly ratify the Rome Treaty, that tribunal has
only prospective jurisdiction. Lastly, although the United Nations
Security Council could create yet another ad hoc tribunal for the
specific purpose of dealing with terrorist acts, any such attempt would
surely founder because of the inability of the international community
to agree upon a definition of ``terrorism''--a flaw that greatly
restricts the feasibility of using any international tribunal for this
purpose. Thus, international tribunals do not provide us with a
current, viable forum for prosecuting terrorists.
The third option, trials by other countries under the
jurisdictional principle of universality, is not well-suited to the
United States for policy reasons. I agree with critics of this option
that America needs to be directly or at least indirectly involved in
the prosecution because the attack upon our people and our facilities
occurred within our country and we clearly have the greatest interest
in prosecuting those responsible for or complicit in the attacks.
Further, the opportunity for capital punishment, and its arguable
deterrence value, is greatly diminished when other sovereigns conduct
the prosecutions within their own countries. This potential choice of
forum is the least practical.
Acknowledging that none of the prosecutorial forums is optimal, but
that the two most feasible are trials in our federal district courts
and trials by military commission, the President clearly signaled his
intent on November 13th to use the latter. I suggest that
this choice may entail costs which outweigh the benefits, notably with
regard to commissions sitting in this country. I believe we should be
cognizant of a potential adverse impact upon our international
credibility, as well as a tarnishing of the image of 50 years of
military Justice under the UCMJ.
It was but five years ago that the United States roundly condemned
the conviction by a military tribunal in Peru of New York native Lori
Berenson on charges of terrorism. Through official channels, we
requested that she be retried in a civilian court because of the lack
of due process afforded her in the tribunal. Our cries of unfairness
were echoed by United Nations officials who openly criticized Peru's
anti-terrorism military courts. There seems little difference in the
measure of due process afforded Berenson in Peru and what is called for
under the President's military order, and I believe this opens us to a
charge of hypocrisy from the international community. The force of this
criticism could be lessened if those who advise the Secretary of
Defense counsel him to ensure a high level of due process in the
regulations establishing the commissions, but the charge laid against
us can never be totally ameliorated. Consequently, I believe our use of
military commissions may result in a fracturing of the large and
disparate coalition which has been put together to wage the long-term
campaign against terrorism worldwide, a campaign which must necessarily
involve far more than the use of military force. As to my second point,
my sense is that the American people do not accurately perceive the
distinction between courts-martial under the military justice system
and military commissions which could be empaneled under the President's
order. I have heard it said on radio talk shows that if military
commissions are good enough for our servicemen and servicewomen, then
they are certainly good enough for terrorists. Even former Deputy
Attorney General George Terwilliger, on this past Sunday's news program
Face the Nation, said that ``there is a fundamental misconception that
somehow a military court cannot be just. Our own soldiers and airmen
are subject to military justice on a regular basis. The military can
provide fair trials.'' This suggests to me that a segment of the
American people, having perhaps become acquainted with military justice
through the portrayal of courts-martial on television or in the movies,
believe that military commissions will generally follow the same rules
of procedure and modes of proof. This Committee knows that is not so.
There is a marked contrast in the protections afforded our service
personnel under the military justice system, and the lack of due
process in military commissions. To illustrate, there is a guarantee of
judicial review under the former; that is specifically denied under the
latter. Although courts-martial may, under certain circumstances be
closed to the public, the evidentiary rules and burden of proof
required for conviction are virtually identical to those in our federal
district courts; that is not the case in military commissions. In other
words, the two systems have little in common, and this must be made
clear as the debate on the propriety of using military commissions
continues.
In the final analysis, the decision is one for the President to
make, and he has already indicated the probable path he intends to
pursue. I believe, however, that hearings such as are being conducted
by this Committee will allow for a broad and balanced airing of views
on this issue, not only to hopefully better inform the Members in both
chambers, but also to give the Administration the benefit of additional
voices in the debate. This should, and must, be done before the first
terrorist is brought to trial.
Mr. Chairman, Senator Hatch and members of the Committee, thank you
again for inviting me to share my concerns with you. I look forward to
answering any questions you might have.
Chairman Leahy. Thank you very much, Professor. I
appreciate that, and I also appreciate very much you making
that very needed distinction between these tribunals and our
well-established--you were a colonel in the military, and you
know the well-established rules of military tribunals.
Ms. Martin, thank you very much, and, again, I appreciate
you spending so much time here with us today. Please go ahead
and testify.
STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL
SECURITY STUDIES, WASHINGTON, D.C.
Ms. Martin. Thank you, Mr. Chairman, and I thank the
Committee for the opportunity to appear today, and I
particularly want to thank the chairman for convening this
extraordinarily important series of oversight hearings.
The Government's efforts to identify the perpetrators of
the terrible attacks on September 11th and to prevent future
attacks before they occur could not be more crucial. But we
have become increasingly concerned that, instead of conducting
a focused and effective law enforcement investigation, the
Government has turned instead to a number of radical and overly
broad measures that threaten basic rights without in turn
providing any increased security.
While some have cast the terrible situation we find
ourselves in today as one in which we must decide what
liberties we are willing to sacrifice for an increased measure
of safety, I do not believe that is an accurate or helpful
analysis. Before asking what trade-offs are constitutional, we
must ask what we gain in security by restricting our civil
liberties.
The common thread in the Justice Department's recent
actions in detaining individuals, providing for eavesdropping,
and the President's order on military commissions is the
secrecy and lack of public and congressional participation in
adopting those measures. It is only by forcing the Government
to articulate why and how particular restrictions on our
liberties will contribute to security that we can have any
guarantee that the steps being taken will, in fact, be
effective against terrorism.
The hearing today I believe is the crucial first step in
that open and public dialogue which to date has been prevented
by the administration's unilateral actions.
I want to talk briefly, I think, about the detentions and
only for a moment about military commissions. As this Committee
is well aware, in the past couple of months more than 1,000
people have been detained according to the Justice Department.
Some 600 people are still in detention. At the same time, law
enforcement officials have on several occasions been careful to
state that only a handful of those individuals, maybe 10 or 20,
have in any way been tied to the hijackers from September 19th
or other members of Al Qaeda or bin Laden. Hundreds of others
are currently in jail. While the Department asserts that their
rights are being respected and that it has complied with all
applicable constitutional and legal limits, it has until
yesterday refused to release that information which the public
and this Committee needs to assure ourselves that that is, in
fact, the case.
While we welcome the disclosures of the Attorney General
yesterday, giving some partial information about the
individuals who have been detained, we join in Senator
Feingold's request and demand for a full accounting of everyone
who has been detained.
There are certainly numerous press accounts which, if
accurate, raise serious questions about whether or not
individuals' rights have been violated in serious and
unconstitutional ways. Most specifically, it appears that
perhaps ten, perhaps hundreds of individuals, including United
States citizens, have been held for weeks, if not months, in
jail when the FBI and the Government has no information
connecting them in any way to the September 11th attacks.
There are examples, some of them I am sure the Committee is
aware of. Perhaps the most egregious one is the two American
citizens who were held in jail, a father and a son, one for
several weeks and one for several months, on charges that they
possessed suspicious passports. A Federal judge finally had an
opportunity to look at it, and it turned out that the plastic
on the passport had split, presumably because of age. The key
factor, it would appear, in those people spending time in jail
while the FBI is conducting an investigation appears to be
their Arabic-sounding name, despite their U.S. citizenship.
The Justice Department has defended the detentions by
saying that all the individuals now in custody have been
charged, either under the criminal law or as immigration
violations. I think the question that this Committee needs to
ask and the public needs to be assured about is: On what
justification are such individuals held in jail before there
has been a trial convicting them either on a criminal charge or
having violated the immigration laws?
What we are especially concerned about that appears to be
happening is that people who have been arrested are being--
excuse me. The Justice Department has made an effort that when
people are arrested on either immigration or criminal charges,
has urged all of the authorities that bail should be denied and
as a blanket matter has urged that they be kept in jail pending
trial. That obviously raises serious concerns about
imprisonment without there being adequate probable cause of a
crime and without meeting the constitutional standards.
I just want to mention one thing, if I might. On the
material witness warrants, Mr. Chertoff said that he was
prohibited from identifying those individuals who were being
held. I don't believe Rule 6(e), governing grand jury secrecy,
says anything about not disclosing the number of individuals
held on a material witness warrant. I might also mention that
there has been information disclosed to the press about not
only the identities of the core suspects, but the evidence
against them.
Perhaps in the question period I might have an opportunity
briefly to discuss military commissions.
[The prepared statement of Ms. Martin follows:]
Statement of Kate Martin, Director, Center for National Security
Studies
Thank you Mr. Chairman and Vice-Chairman for the opportunity to
testify today on behalf of the Center for National Security Studies.
The Center is a civil liberties organization, which for 30 years has
worked to ensure that civil liberties and human rights are not eroded
in the name of national security. The Center is guided by the
conviction that our national security must and can be protected without
undermining the fundamental rights of individuals guaranteed by the
Bill of Rights. In our work on matters ranging from national security
surveillance to intelligence oversight, we begin with the premise that
both national security interests and civil liberties protections must
be taken seriously and that by doing so, solutions to apparent
conflicts can often be found without compromising either.
We commend the Committee for holding this series of oversight
hearings to examine how the Justice Department can persevere our
freedoms while defending against terrorism. After the scheduled
examination of the Department's current initiatives and activities in
investigatng the September 11 attack, we urge the government to next
examine how the Department of Justice intends to implement the new
authorities granted in the USA PATRIOT Act.
Certainly, there is no greater government responsibility today than
to work to prevent future terrorist attacks like those on September 11.
The Attorney General and the FBI Director share the enormous
responsibility of carrying out an effective investigation to prevent
more attacks. Of equal importance is Congress' responsibility to
conduct oversight of that investigation to protect our security and to
protect the Constitution.
While some have cast the terrible situation we find ourselves in
today as one in which we must decide what liberties we are willing to
sacrifice for an increased measure of safety, I do not believe that is
an accurate or helpful analysis. Before asking what trade-offs are
constitutional, we must ask what gain in security is accomplished by
restrictions on civil liberties. It is only by forcing the Justice
Department to articulate why and how particular restrictions will
contribute to security and that we can have assurance that the steps
being taken will be effective against terrorism. This hearing today is
the beginning of that essential inquiry.
Immediately following the September 11 attacks, we, along with more
than 140 organizations from across the political spectrum called for
the apprehension and punishment of the perpetrators of those horrors.
At the same time, we all recognized that we can, as we have in the
past, in times of war and of peace, reconcile the requirements of
security with the demands of liberty.
The government's efforts to identify any perpetrators and to
prevent future attacks before they occur could not be more crucial. But
we have become increasingly concerned that instead of a focused and
effective law enforcement investigation, the government has turned to a
number of radical and overly broad measures that threaten basic rights
without providing any increased security. We understand that this
Committee intends to examine all of them and we welcome your efforts.
We will address each briefly in turn.
Lack of Congressional Authorization or Consultation
A common thread in the recent Justice Department actions is the
secrecy and lack of congressional consultation with which they have
been carried out. In detaining more than 1,000 individuals, in adopting
a policy of eavesdropping on attorney-client communications, and in
setting up a system of secret military trials and detentions, the
administration has acted unilaterally without congressional
participation or even consultation. By considering these actions in
secret before adopting them, the administration prevented any public
debate about their effectiveness. The lack of congressional
notification is especially troubling in light of the administration's
simultaneous request to the Congress to enact what was described as a
comprehensive package of new authorities needed to combat terrorism
passed as the USA PATRIOT Act. The administration's conduct calls into
question its commitment to respecting the constitutional separation of
powers and role of the Congress. Indeed, all of these actions would
enhance the power of the Executive at the expense of the constitutional
roles of both the Congress and the judiciary.
In the case of the new wiretapping policy and the military
commission order, the lack of congressional authorization is fatal to
the legality of those actions. Only the Congress, not the President,
may legislate wiretapping standards or authorize military tribunals.
The administration's edicts are invalid on that ground alone.
The lack of public discussion has now left us with restrictions on
our liberties without any increase in our security. Only through an
open and public dialogue involving the Congress, the Executive, and the
American people can we find a solution that advances both national
security and civil liberties. The unwillingness of the government to
engage in a public or constitutional dialogue, not about the details of
the investigations, but about the constitutional rules governing that
investigation has prevented that process. This Committee must now
remedy that problem.
The Dangers of Excessive Secrecy
In times of crisis, even more than in times of peace, a commitment
to robust public debate is especially important. This is true for two
reasons. First, the executive branch is more likely to take actions
that violate basic civil liberties and thus an alert and informed
public is necessary to counter-act that dangerous tendency. Second, the
government is more likely to make effective decisions if there is an
informed and influential public.
The government has the right, and indeed the obligation, to keep
secret information whose disclosure would genuinely harm national
security, interfere in an investigation, or invade the privacy of
individuals. However, because public debate requires access to
government information, the executive branch also has an obligation to
release as much information as possible and to avoid taking actions
that would chill essential public debate on national policy issues.
Regrettably, the government has been seriously deficient on both
accounts.
Almost as worrisome as the detentions of aliens since September 11
is the secrecy and veil of obfuscation that the government has thrown
around its actions in blatant disregard of its affirmative obligations
to provide information especially about actions in the criminal justice
system, its obligation to inform Congress of its actions, and the
requirements of the Freedom of Information Act (FOIA).
The Justice Department and the Attorney General have engaged in
selective leaks of information about the detentions as part of their
effort to calm the public and suggest that it is making progress in the
investigation. At the same time, they have refused to provide the
Congress and the public with the information to which they are
entitled. Its response to FOIA requests about the detentions shows its
cavalier disregard of the law. The FBI has responded that no
information can be disclosed in response to the request despite the
fact that much information has been in the press, clearly coming from
the government. The Justice Department, after agreeing that the request
deserved an expedited response because it involved a ``matter of
widespread and exceptional media interest in which there exists
possible questions about the government's integrity which affects pubic
confidence,'' has failed to provide a substantive response.
More broadly, the Attorney General has sent the entire bureaucracy
a clear signal by reversing the directive regarding discretionary
release of information under FOIA as established by his predecessor.
Instead of requiring that information be released except when its
disclosure would result in some harm, Ashcroft has directed that
information be withheld whenever possible under the statute, regardless
of whether disclosure would be harmful or violate the public's right to
know.
Although the directive cites the September 11 attacks as
justification, it covers all government information, much of which has
no national security or law enforcement connection whatsoever. It is
clearly intended to send the message to the bureaucracy that instead of
working with the public to share information that is rightfully theirs,
the government should take advantage of the ambiguities in the law to
deny information. The result will surely be a less open and less
accountable government.
Congress and the courts are our only recourse. We expect to file
suit for the material we requested under FOIA as soon as possible. We
will be making other FOIA requests and will file other lawsuits. We are
also exploring other statutory as well as constitutional bases for
legal action to compel the release of documents. However, we need the
Congress. We urge this committee to hold the Justice Department to
account by demanding information and holding hearings. We urge you to
make public as much of the information that you believe is in the
national interest, even if it means acting over the objections of the
Justice Department.
Secret Detentions
In the first few days after the attacks, some 75 individuals were
picked up and detained. While the administration sought increased
authority from the Congress to detain foreign individuals on the
grounds of national security with no judicial oversight, it picked up
hundreds more individuals. The Attorney General announced that 480
individuals had been detained as of September 28; 10 days later another
135 had been picked up; and in one single week during October, some 150
individuals were arrested. As of November 5, the Justice Department
announced that 1,147 people had been detained.
While trumpeting the numbers of arrests in an apparent effort to
reassure the public, the Department has refused to provide the most
basic information about who has been arrested and on what basis. We
know that the detainees include citizens, legal residents, and,
according to INS director James Zigler, 185 individuals were being held
on immigration violations. According to the Attorney General and FBI
Director, the remaining group includes a small number of individuals
held on material witness warrants and others held on violations of
local, state, or federal laws. Apparently none have been charged as
terrorists, indeed only 10 or 15 are even suspected of being
terrorists. At this time, we do not have any idea how many have been
released.
As the number of secret detentions increased, press reports began
to appear, which if accurate, raise serious questions as to whether the
rights of the detainees are being violated. As each successive week has
brought hundreds more arrests, demands for release of basic information
have intensified. The unprecedented level of secrecy surrounding the
extraordinary detention of hundreds of individuals, prompted us, along
with nearly 40 other civil liberties, human rights, legal, and public
access organizations to demand release of the detainees' names and the
charges against them under the FOIA request. The Chair and other
members of this Committee and of the Congress have also demanded a
public accounting of the arrests.
In response, the Department has only stonewalled. Justice
Department officials have refused to release further information on the
detentions, and have stopped keeping a record of those detained,
presumably in order to avoid having to answer questions about who is
being counted in the tallies.
Public disclosure of the names of those arrested and the charges
against them is essential to assure that individual rights are
respected and to provide public oversight of the conduct and
effectiveness of this crucial investigation. Public scrutiny of the
criminal justice system is key to ensuring its lawful and effective
operation. Democracies governed by the rule of law are distinguished
from authoritarian societies because in a democracy the public is aware
of those who have been arrested. Individuals may not be swept off the
street and their whereabouts kept secret.
The government has made varying claims to justify this secrecy.
Ironically, it now claims that it is withholding the names of detained
individuals in order to protect their privacy. What is needed to ensure
the protection of the rights of these individuals, who have been jailed
by the government now worrying about their privacy is what we have
always relied upon in protecting against government abuses, namely
public sunshine.
Likewise, the Department's claim that releasing the names and
charges could harm the investigation is contradicted by its own
disclosures. Not only have officials already identified several
suspected terrorists, but they have also outlined evidence against
them. The Attorney General himself described the evidence against the
three individuals whom he believes had prior knowledge of the September
11 attacks. Finally, the Department has made the astonishing claim that
because it asked courts to seal some of the proceedings, it is now
helpless to disclose even the identities of the courts or the
authorities under which those gag orders were sought.
While we are not seeking the details of the investigation or an
outline of the evidence being collected by the FBI, we do urge this
Committee to secure the release of information crucial to public
accountability: the names and charges against those who have been
detained.
There is every reason to fear that the cloak of secrecy is
shielding extensive violations of the rights of completely innocent
individuals. These violations include imprisonment without probable
cause, denial of the constitutional right to bail, interference with
the right to counsel, and abusive conditions in detention. We will only
outline a few examples, but there are many more.
a. imprisonment without probable cause.
While the government has admitted that it has evidence of terrorism
against only a small fraction of the detainees, it has imprisoned
hundreds of individuals against whom there is no evidence of criminal
activity. For example, a father and son, both US citizens, were
arrested as they returned from a business trip in Mexico because their
passports looked suspicious. The father was released after ten days and
sent home wearing a leg monitor, but the son spent two more months in
jail until a federal judge determined that the plastic covering had
split. The key factor in their arrest appears to be their Arabic
sounding names. While the Attorney General has announced that
terrorists will be arrested for spitting on the sidewalk, he has yet to
explain why innocent Americans will be jailed for doing so.
In a handful of cases, the Department is using the authority of the
material witness statute to detain people. We urge this Committee to
examine carefully the circumstances of those detentions, which are now
all shrouded in secrecy, and to consider the dangerous ramifications of
using the material witness statute not to secure testimony but to
authorize preventive detention.
There is growing evidence that the FBI has abandoned any effort to
comply with the constitutional requirement that an individual may only
be arrested when there is probable cause to believe he is engaged in
criminal activity. The FBI is now seeking to jail suspicious
individuals until the agency decides to clear them. The FBI is
providing a form affidavit, which relies primarily on a recitation of
the terrible facts of September 11, instead of containing any facts
about the particular individual evidencing some connection to
terrorism, much less constituting probable cause. The affidavit simply
recites that the FBI wishes to make further inquiries.\1\ In the
meantime, the individual is held in jail.
---------------------------------------------------------------------------
\1\ While the FBI affidavits are difficult to find, one filed in a
bail proceeding in immigration court appears to contain the general
formula. It says:
``In the context of this terrorism investigation, the FBI
identified individuals whose activities warranted further inquiry. When
such individuals were identified as aliens who were believed to have
violated their immigration status, the FBI notified in INS. The INS
detained such aliens under the authority of the Immigration and
Nationality Act. At this point, the FBI must consider the possibility
that these aliens are somehow linked to, or may posses knowledge useful
to the investigation of the terrorist attacks on the World Trade Center
and the Pentagon. The respondent, Osama Mohammed Bassiouny Elfar, is
one such individual. . . .
At the present stage of this vast investigation, the FBI is
gathering and culling information that may corroborate or diminish our
current suspicions of the individuals that have been detained. . .In
the meantime, the FBI had been unable to rule out the possibility that
respondent is somehow linked to, or possesses the knowledge of the
terrorist attacks on the World Trade Center and the Pentagon. To
protect the public, the FBI must exhaust all avenues of investigation
while ensuring that critical information does not evaporate pending
further investigation.''
---------------------------------------------------------------------------
b. denial of the constitutional right to bail.
The right to be free on bail until trial is a vital part of the
constitutional presumption of innocent until proven guilty. While
individuals can be denied bail when there is a substantial risk that
they would flee or commit acts of violence if released, this
constitutional standard currently seems to have been abandoned. Instead
of considering whether a particular individual is likely to flee, the
Department is attempting to detain all individuals picked up as part of
the September 11 investigation. If the past few weeks are an example of
what the future holds, it is likely that individuals charged with
``spitting on the sidewalk'' may serve more time in jail pre-trial than
they would if they were found guilty.
All these circumstances raise serious questions about the
effectiveness of the current effort. Is the FBI carrying out a focused
investigation executing the work necessary to identify and detain
actual terrorists, or is this simply a dragnet, which will only be
successful by chance. The fact that 1,000, or even 5,000, individuals
are arrested is no assurance that the truly dangerous ones are among
them.
c. violation of the right to consular notification.
Mohammed Rafiq Butt, a Pakistani citizen who was detained for
entering the country illegally, died in custody of an apparent heart
attack on October 23. Pakistani diplomats only learned of Mr. Butt's
arrest when journalists called the Embassy to ask for a comment on his
death. Clyde Howard, director of the State Department's Consular
Notification and Outreach Unit, said, ``We are concerned about these
failures of notification when they happen to us overseas, so it becomes
more difficult for us to assert our rights under the Vienna Convention
if we are not doing a good job in giving the same notification here.''
\2\
---------------------------------------------------------------------------
\2\ John Dually and Wayne Washington, ``Diplomats Fault Lack of US
Notice on Many Detainees'', The Boston Globe, November 1, 2001.
---------------------------------------------------------------------------
We urge this Committee to examine whether since September 11, law
enforcement officials have consistently failed to notify foreign
governments when their nationals are arrested. US treaty obligations
require foreign consulates to be so notified.
d. violation of the right to counsel and the fourth amendment.
Even before the Justice Department announced its new policy of
eavesdropping on conversations between detainees and their attorneys,
there were numerous reports of interference with the right to counsel.
Many immigration detainees were prevented from finding counsel. The
administration's ``one call a week'' policy made it difficult for
detainees to communicate with their families, find lawyers, or even
know if they had successfully secured representation. There is reason
to fear that detainees' lawyers have been muzzled by gag orders, or
simply intimidated into silence with threats of actions organized
against their clients.
Under the Justice Department's recently announced policy, solely on
the Attorney General's say-so, the Department can eavesdrop on the
privileged attorney-client conversations of persons who have not even
been charged. Such individuals can be held incommunicado, with their
activities severely restricted. While others have outlined the clear
unconstitutionality of this policy, I want to emphasize the equally
unlawful way in which it was adopted.
Only weeks before the unilateral announcement of this new policy,
the Attorney General had come to the Congress seeking a comprehensive
package of new powers the administration believed were necessary to
fight terrorism. At no time did the government suggest that any
amendment was needed to the wiretap statutes authorizing surveillance
of such privileged conversations. Had it done so, there could have been
a public debate about whether current law was inadequate in some way.
Instead, the Attorney General has simply declared that the government
will suspend the Fourth Amendment requirements of probable cause and
judicial warrant for wiretapping and substitute his say-so. Such an
approach shows a lack of respect for both the Bill of Rights and our
system of divided government.
I also want to comment on the administration's claim that the
eavesdropping is acceptable under the Constitution because the FBI
agents who eavesdrop on privileged conversations will not be involved
in criminal prosecution of the individual. It appears highly doubtful
that this will be the reality, given the FBI's description of its
investigation as a mosaic in which each small piece of information can
only be understood when contextualized. Even more significantly, it is
clear that such information could be used against the individual in any
detention or military commission proceeding authorized by President
Bush's most recent order.
Intimidation of Immigrants
Many of the recent actions appear to be aimed not so much at
gathering information about Al Qaeda and its members, but at simply
intimidating those who have come to visit, do business, or work and
become Americans. There are myriad reports of individuals who have been
jailed for weeks because they have overstayed their visas. Usually they
would have been granted some kind of adjustment allowing them to leave
the country voluntarily or stay and become law-abiding and productive
members of our society, but not since the recent terrorist attacks. The
plan to question 5,000 individuals without knowing anything about any
specific individual indicating that he or she might have useful
information will certainly intimidate many into leaving the country.
This plan will take enormous law enforcement resources and will
generate many reams of memos; but whether it will produce any useful
information is open to question. It is urgent that this Committee
immediately examine whether these actions are no more than attempts to
intimidate individuals from the Middle East into leaving the country.
If so, such a policy needs to publicly defended and debated. It is not
clear what law enforcement or national security purpose is served by
such a tactic, which presumably will not work on those who have
actually entered the country ready to die in the order to kill
Americans. It does, however, erode the trust and confidence of minority
and immigrant communities and make law enforcement resources otherwise
unavailable.
The Order Authorizing Military Commissions and Preventive Detention
Violates Separation of Powers and The Bill of Rights
The constitutional defects of the recent order authorizing secret
military trials and military detentions are outlined elsewhere. Here, I
only offer a few observations.
Individuals currently in detention may be threatened
with secret transfers to military custody.
The broad scope of the order would authorize the President to
direct that individuals currently held, even if not criminally charged,
be immediately transferred to secret military custody, even overseas.
It seems clear that the intent of the order is to authorize such
transfers in secret and to impose both legal and practical obstacles to
individuals obtaining any judicial review of such transfers.
The authorization of military detention of aliens
inside the United States on the say-so of the President is an
unconstitutional end-run around the provisions of the USA
Patriot Act.
In addition to military commissions for individuals captured
overseas, the order authorizes detention of aliens inside the United
States believed by the President to be involved in terrorism. This part
of the order is a deliberate end-run around the provisions of the USA
Patriot Act concerning such detentions, which limits the conditions and
time under which individuals may be detained. The President's Order
attempts to authorize what the Congress rejected in the first
administration draft of the anti-terrorism bill. It is a deliberate
end-run around the limits and restrictions agreed to by the
administration in negotiating the detention provisions of the Patriot
Act.
The military commission order violates separation of
powers.
The administration's unilateral issuance of this order without even
discussing it with the Congress is the most blatant example of its
disregard for the explicit text of the Constitution. The Constitution
gives to the Congress explicit authority over military tribunals.
Article I specifically vests in the Congress: the power to create
judicial tribunals ``inferior to the Supreme Court;'' ``To define and
punish'' Offenses against the Law of Nations; To make Rules concerning
Captures on Land and Water; and ``To make Rules for the Government and
Regulation of the land and naval Forces.'' Article I, sec. 8. When the
Supreme Court approved the use of military commissions in World War II,
Congress had specifically authorized their use in the Articles of War
adopted to prosecute the war against Germany and Japan.
Accordingly, this order violates separation of powers as the
creation of military commissions has not been authorized by the
Congress and is outside the President's constitutional powers.
Individuals accused of war crimes are entitled to fundamental due
process protections even if tried by military courts.
Since the Supreme Court approved the use of military commissions to
try offenses against the laws of war in World War II, the law of war
and armed conflict has come to include the requirements that even those
characterized as unlawful combatants accused of war crimes must be
accorded fundamental due process. Thus, any constitutionally authorized
military commissions would be bound by the current legal obligations
assumed by the United States. These would include the United Nations
charter and the International Covenant of Civil and Political Rights,
none of which were in existence at the time the Supreme Court approved
the use of military commissions during World War II.
We urge the Congress to make clear that such order is not
authorized and thus unconstitutional. If military trials are deemed
necessary for individuals captured in Afghanistan or fleeing therefrom,
the Congress should authorize their use consistent with the
requirements of due process enshrined in the Constitution and the
international covenants agreed to by the United States.
In the meantime, we appeal to the Committee to require the Attorney
General to immediately notify the Committee of any plans to apply the
order to any individuals now detained in the United States and to
inform you of the identities of such individuals and the basis for
applying the order before doing so.
We urge the Congress to insure that those accused of even the most
terrible crimes against humanity be accorded fundamental due process
because our commitment to accord everyone the protection of the rule of
law is what in the end distinguishes us from the terrorist who simply
kill in the name of some greater good.
Conclusion
In the darkest days of the Cold War we found ways to reconcile both
the requirements for security and those of accountability and due
process, by taking seriously both interests. No less is required if in
the long run, we expect to be successful in the fight against
terrorists, who care nothing for either human liberty or individual
rights.
We need to look seriously at how security interests can be served
while respecting civil liberties and human rights. It is time to give
serious consideration to whether promoting democracy, justice, and
human rights will, in the long run, prove to be a powerful weapon
against terrorism along with law enforcement and military strength.
Current administration policies assign no weight to respecting civil
liberties as useful in the fight against terrorism. Only when that is
done, will we truly be effective in what has been acknowledged to be a
long and difficult struggle.
Chairman Leahy. Thank you.
I would also note for each of the witnesses, obviously we
are, because of the time, being a little bit tighter on the
control of the time than normal. But, certainly, you will be
getting back transcripts of this and anything you want to add
to the transcript, any one of you, of your own testimony, of
course, feel free to do that and to make it part of the
permanent record. This is going to be a series of hearings that
are going to go on for some time and if individual witnesses
wish to add to their testimony, they will be able to.
Professor, thank you very much for being here, and please
go ahead.
STATEMENT OF NEAL KATYAL, VISITING PROFESSOR, YALE LAW SCHOOL,
PROFESSOR OF LAW, GEORGETOWN UNIVERSITY, WASHINGTON, D.C.
Mr. Katyal. Mr. Chairman, Senator Hatch and members of the
Committee, in my judgment the President's order for military
tribunals and the Attorney General's attorney-client regulation
both contain serious constitutional flaws. Much attention has
been focused on whether these decisions violate notions of fair
play, but there is a troubling and different issue. These
decisions aggressively usurp the role of Congress.
Of course, all Presidents are tempted to go it alone.
President Truman seized the steel mills and President Roosevelt
tried to pack the courts. Yet, our Constitution's structure, as
Senator Specter reminds us in his eloquent editorial in today's
New York Times, mandates that fundamental choices such as these
be made not by one person but by the branches of Government
working together. Ignoring this tradition charts a dangerous
course for the future and may jeopardize the criminal
convictions of the terrorists today.
Throughout history, there have been times when this country
has had to dispense with civil trials and other protections.
Yet, those circumstances have been rare, carefully
circumscribed, and never unilaterally defined by a single
person.
A tremendous danger exists if the power is left in one
individual to put aside our constitutional traditions when our
nation is at crisis. The safeguard against the potential for
this abuse has always been Congress' involvement in a deep
constitutional sense. The default should be faith in our
traditions and faith in our procedures.
The attorney-client regulation was announced with no
legislative consideration whatsoever. It comes close to
infringing both Fourth Amendment rights of privacy and the
Sixth Amendment rights to counsel. Those subject to the rule
aren't even charged with a crime, for the regulation explicitly
contemplates use against ``material witnesses.''
The Government is currently detaining over 1,100
individuals. On what basis we don't even know. Yet, now it
asserts the unilateral power to abrogate the freedom between
attorney and client, a freedom described by our Supreme Court
as the oldest privilege at common law.
A client might want to talk to his lawyer about the most
private matters imaginable--a divorce created, in part, by the
Government's attention, for example--and can't do privately.
This is a dramatic and unprecedented aggrandizement of power.
The decree's constitutionality is particularly in doubt
when a series of less restrictive alternatives exist, and this
is particularly true if, as the Justice Department says today,
the regulation only applies to 16 individuals, a fact that will
actually backfire on the administration's legal case in the
future. Such an intrusion into private affairs can only be
justified by compelling circumstances, and these circumstances
should be announced by this body, by the Congress, in the form
of law, not executive decree.
The Fourth Amendment focuses on reasonableness, and one way
in which courts assess reasonableness is by looking to
Congress. When the courts were in conflict over whether the
courts could conduct certain intelligence surveillance, this
body and the President compromised in the FISA, the Foreign
Intelligence Surveillance Act. This Committee stated at that
time the goal of the legislation was to end the President and
the Attorney General's practice of disregarding the Bill of
Rights ``on their own unilateral determination that national
security justifies it.''
Moving to the issue of military tribunals, the sweep of the
order goes far beyond anything that Congress has authorized,
for it explicitly extends the tribunal's reach to conduct
unrelated to the September 11 attacks.
For example, if a Basque separatist tomorrow kills an
American citizen in Madrid, or a member of the Irish Liberation
Army threatens the American embassy in London, the military
tribunal has jurisdiction over both claims. So, too, the
tribunal may have jurisdiction over a permanent green card-
holder in Montana who tries to hack into the Commerce
Department.
There is no conceivable legislative authorization for these
types of trials, trials that may take place under conditions of
absolute secrecy. The administration thus sets an extremely
dangerous precedent. A future President might unilaterally
declare that America is in a war on drugs and decide to place
certain narcotics traffickers in secret military trials.
Imagine another President who hates guns. That President
might say the threat posed by guns is so significant that
monitoring of private conversations between attorneys and gun
dealers, and monitoring of conversations between attorneys and
gun purchasers, is required, pointing to the precedent set by
this administration.
Now, these examples might seem unbelievable to you, but
they are much smaller steps than the one the administration is
now taking when one compares what previous administrations have
done to what the present administration claims it can do today.
It is therefore my hope that this Committee will use its
authority to impress upon the administration that its decrees
have serious constitutional problems and secure a promise from
the President not to use military courts, particularly in
America, and not to use attorney-client monitoring until this
body so authorizes them. This Committee could then immediately
commence hearings to determine whether those policies are
appropriate and, if so, how they should be circumscribed, just
as it did with the USA PATRIOT bill.
In conclusion, like all Americans, I believe the
administration is trying, in good faith, to do the best it can,
but that is part of the point. Our constitutional design can't
leave these choices to one man, however well-intentioned and
wise he may be. We don't live in a monarchy.
[The prepared statement of Mr. Katyal follows:]
Statement of Neal Katyal, Professor of Law, Georgetown University
Introduction
Thank you, Chairman Leahy and members of the Committee, for
inviting me here today to discuss the topic of preserving our freedoms
while defending against terrorism. In particular, I will focus my
remarks on the constitutionality of the President's recent Order
regarding military tribunals and Attorney General Order No. 2529-2001,
which permits the Justice Department to monitor communications between
attorneys and their clients under certain circumstances. In my
judgment, both of these policies usurp the power of Congress. Our
Constitution's framework, from top to bottom, evinces a strong
structural preference that decisions of this magnitude not be made by
one person. Our Founders understood the temptation that a single person
would have when given unbridled power, an understanding substantiated
this century when President Franklin Roosevelt tried to pack the courts
and President Truman attempted to seize the steel mills. The current
course of conduct is an unprecedented aggrandizement of power, one that
not only threatens the constitutional prerogatives of this body but
also risks jeopardizing the criminal convictions of those responsible
for the September 11 attacks.
At the outset, let me be clear about what I am not saying: I cannot
say that either of these policies, if crafted correctly and
appropriately circumscribed, would be unconstitutional. The policies
come close to the constitutional line, but national security in some
instances may compel the country to create military tribunals or to
monitor conversations between attorneys and clients. The problem today
is that the Executive Branch has not made this case, either to this
body or to the country. As bystanders, it is impossible to know whether
military necessity requires the measures taken by the Administration.
Many terrible things have been done in the name of national security--
but many terrible disasters have also been averted through concerted
efforts by our law enforcement agents and intelligence community. The
tough issue is how to strike a balance.
Our Constitution commits this tough issue not to a single person,
but to our branches of government working together. Throughout history,
there have been times when this country has had to dispense with civil
trials, with other protections in the Bill of Rights, and with the
rules of evidence. Those circumstances have been rare, carefully
circumscribed, and never unilaterally defined by a single person. A
tremendous danger exists if the power is left in one individual to put
aside our constitutional traditions and protections when he decides the
nation is in a time of crisis. The safeguard against the potential for
the abuse of military trials has always been Congress' involvement, in
a deep constitutional sense.
As I will explain, the sweep of the Military Order goes far beyond
anything Congress has authorized, for it explicitly extends the
tribunals' reach to conduct unrelated to the September 11 attacks. For
example, if a Basque Separatist tomorrow kills an American citizen in
Madrid, or a member of the Irish Liberation Army threatens the American
embassy in London, the military tribunal has jurisdiction over both
persons. So too, the tribunal has jurisdiction over a permanent green
card holder in Montana who tries to hack into the Commerce Department,
thus disregarding years of legislative consideration over the computer
crimes statutes. There is no conceivable statutory warrant for such
trials, trials that may take place under conditions of absolute
secrecy. At most, the reach of a military tribunal can reach a theater
of war, not Spain, Great Britain, Montana, or the range of other
locations not currently in armed conflict.
The Military Order thus sets an extremely dangerous precedent. A
future President might unilaterally declare that America is in a ``War
on Drugs,'' and decide to place certain narcotics traffickers in
military trials. A President might say that some prospective threat is
``the moral equivalent of war'' and set up military tribunals to
counter that threat as well. Some of these decisions might be entirely
justified given the particular facts at issue. But they are the sorts
of decisions that cannot be made by one man alone. These hypotheticals
are much smaller steps than the one the Administration is now taking.
The Administration's Military Order is such a dramatic extension of the
concept of military tribunals, when compared to the predecessors in
American history, that these other steps appear not only plausible, but
even likely, down the road.
Because the Military Order strays well beyond what is
constitutionally permissible, this Committee should inform the White
House of the serious constitutional concerns involved in the
President's unilateral Military Order. It should ask the President not
to use the tribunals until necessary authorizing legislation is passed,
and should immediately commence hearings to determine whether military
tribunals are appropriate and, if so, how they should be constituted.
Without legislation, however, the use of a military tribunals raises
serious constitutional concerns, difficulties that may even lead to
reversal of criminal convictions.
The Military Order
The jurisdiction of the military tribunal reaches any suspected
terrorist or person helping such an individual, whether or not the
suspect is connected to Al Qaeda and the September 11 attacks. That
individual can be a permanent resident alien, thus potentially applying
to millions of American residents. The order explicitly permits
tribunals to be set up not simply in Afghanistan, but rather they will
``sit at any time and any place''--including the continental United
States. Sec. 4(c)(1); see also Sec. 3(a), Sec. 7(d). The order
authorizes punishment up to ``life imprisonment or death.'' Sec. 4(a).
Both conviction and sentencing (including for death) is determined when
two-thirds of a military tribunal agree. At the trial, federal rules of
evidence will not apply, instead evidence can be admitted if it has
``probative value to a reasonable person.'' Sec. 4(c)(3). Grand jury
indictment and presentment will be eliminated, so too will a jury
trial. The members of the military tribunal will lack the insulation of
Article III judges, being dependent on their superiors for promotions.
The Order also strongly suggests that classified information will not
be made available to defendants, even though such material may be used
to convict them or may be significantly exculpatory. See Sec. 4(c)(4);
Sec. 7(a)(1). The Order further claims that defendants ``shall not be
privileged to seek any remedy or maintain any proceeding. . .in any
court of the United States, or any State thereof.'' Sec. 7(b). And most
damaging: the tribunals may operate in secret, without any publicity to
check their abuses.
In short, these military tribunals will lack most of the safeguards
Americans take for granted, safeguards that the American government
routinely insists upon for its citizens, either here or when they are
accused of a crime overseas. The Constitution generally requires: 1) a
trial by Jury, U.S. Const., Art III, Sec. 2 (``The Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury''); 2) that the jury
trial be a public one, U.S. Const., Am. VI (``In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury. . .''); 3) those accused the right to
confront witnesses and subpoena defense witnesses, Id. (``to be
confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor''); 4) proof beyond a ``reasonable
doubt'' for criminal convictions in general, and detailed procedural
protections to insure accuracy before the death penalty is imposed; and
5) indictment by a grand jury, U.S. Const., Am. V (``No person shall be
held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in
time of War or public danger''). These constitutional guarantees may be
found inapplicable at times,\1\ but much caution is warranted before
making such a finding. Such findings should be made carefully, and not
by a single person in a secretive way.
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\1\ E.g., Johnson v. Eisentrager, 339 U.S. 763 (1950).
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The Structure of the Constitution Evinces a Strong Preference Against
This Unilateral Military Order
The American colonists, who wrote our Declaration of Independence
penned among their charges against the King, first, ``He has affected
to render the Military independent of and superior to the Civil
Power'',\2\ second, ``For depriving us, in many Cases, of the Benefits
of Trial by Jury,'' \3\ and third, that George III had ``made Judges
dependent on his Will alone, for the Tenure of their Offices, and the
Amount and Payment of their Salaries.'' It was no accident that the
Framers established three branches of government in the wake of George
III's reign. A Congress to write the laws, an Executive Branch to
enforce them, and a Judicial Branch to interpret them. Consider how
markedly the Order establishing the military tribunal departs from this
constitutional scheme. This Congress has not been asked to create a
military tribunal. The Order attempts to strip the Judicial Branch of
much or all of its authority to review the decisions taken by the
Executive Branch. And the judges are not ``judges'' as civilians know
them, but rather officials who are part of the Executive Branch. The
Executive Branch is acting as lawmaker, law enforcer, and judge. The
premise of the Military Order is to bar involvement by any other
branch, at every point. This is exactly what James Madison warned
against when he wrote ``The accumulation of all powers legislative,
executive and judiciary in the same hands, whether of one, a few or
many, and whether hereditary, self appointed, or elective, may justly
be pronounced the very definition of tyranny.'' Federalist No. 47
(Cooke ed., 1961), at 324.
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\2\ E.g., Laird v. Tatum, 408 U.S. 1, 19(1972) (Douglas, J.,
dissenting) (finding that this clause restricts the power of the
military); Reid v. Covert, 354 U.S. 1, 29 (1957); Bissonette v. Haig
776 F.2d 1384, 1387 (8th Cir. 1985).
\3\ See, e.g., Neder v. United States, 527 U.S. 1, 31 (1999)
(Scalia, J., concurring in part and dissenting in part) (stating that
this clause restricts the ability of the government to limit jury
trials); Parkland Hosiery Co. v. Shore, 439 U.S. 322, 341 n.3 (1979)
(Rehnquist, J., dissenting); Duncan v. Louisiana, 391 U.S. 145, 152
(1968); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 n.9
(1955).
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The issues raised by the Military Order concern not only today, but
tomorrow. You can already hear how our treatment of the Nazi saboteurs
in 1942 has become the guidepost for our treatment of individuals
today. What will the present course of conduct mean for situations down
the road? Once the President's power to set up military tribunals is
untethered to the locality of war or explicit Congressional
authorization, and given to the President by dint of the office he
holds, there is nothing to stop future Presidents from using these
tribunals in all sorts of ways. In this respect, it is important to
underscore that the precedent the Bush administration seeks to
revitalize, the Nazi saboteur case of Ex Parte Quirin, 317 U.S. 1, 20,
37-38 (1942), explicitly goes so far as to permit military tribunals to
be used against American citizens. We must be extraordinarily careful
when revitalizing an old and troubling court decision, for doing so
will set new precedent for future Presidents that can come back to
haunt citizens and aliens alike. Our Constitution limits the power of
one person to set this sort of destructive precedent. If the exigencies
of the situation demand it, the Congress can of course authorize
military tribunals or attorney/client monitoring, just as it expanded
law-enforcement powers in the USA PATRIOT Act, Pub. L. No 107-56, 115
Stat. 272 (2001).
In past circumstances, military tribunals have been set up only
when Congress had declared war or had authorized such tribunals. It is
often asked what purpose the Declaration of War Clause in the
Constitution serves. We know it is not about initiation of troops on
foreign soil, Presidents have done that for time immemorial without
such a declaration by Congress. But one thing, among others, a
declaration of war offers is to establish the parameters for
Presidential action. By declaring war, the Congress is stating that the
President should receive additional powers in times of military
necessity. A declaration of war serves to confine the circumstances in
which a military tribunal can be used, and it also serves to limit the
tribunal's jurisdiction to a finite period of time. As Justice Jackson
put it,
Nothing in our Constitution is plainer than that a declaration
of a war is entrusted only to Congress. Of course, a state of
war may in fact exist without a formal declaration. But no
doctrine that the Court could promulgate would seem to me more
sinister and alarming than that a President whose conduct of
foreign affairs is so largely uncontrolled, and often even is
unknown, can vastly enlarge his mastery over the internal
affairs of the country by his own commitment of the Nation's
armed forces to some foreign venture. . . .
Youngstown v. Sawyer, 343 U.S. 579, 642 (Jackson, J.,
concurring).\4\ Just as this body feared that the wide-ranging law
enforcement powers authorized in the USA PATRIOT Act might be in
existence for too long a time and therefore imposed a sunset clause,
see Sec. 224, so too a declaration of war restricts the duration and
scope of military jurisdiction. No such confinement exists in the
Military Order.
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\4\ See also Youngstown, 343 U.S. 579, 612 (1952) (Frankfurter, J.,
concurring) (``In this case, reliance on the powers that flow from
declared war has been commendably disclaimed by the Solicitor
General'').
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A declaration of war, however, is not the only way for this body to
provide its assent to military tribunals. Congress can, through
ordinary legislation, authorize them, and, if appropriate, limit them.
If it were to do so, the constitutional footing of the tribunals would
be far stronger. The current unilateral action taken by the Bush
Administration threatens to result in the release of those subject to
the Military Order. Without sufficient approval by Congress, the
Executive Branch has set up an easy constitutional challenge to the
existence of the tribunals. There is no good reason why criminal
convictions should be jeopardized in this way. The Executive should
make his case to Congress, and let Congress decide how it wants to
proceed. The failure to do so may be read by courts to imply that
reasons other than national security undergird his decision. Should
this body authorize such trials, by contrast, it would be read by
courts as extremely important indicia about the seriousness of the
threat.\5\
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\5\ Naturally, if the subject of the tribunal is a major figure
like Osama Bin Laden, courts may be unlikely to void a conviction on
any ground. But these tribunals aren't being consider for Bin Laden
alone, but also for the more minor players. In those cases, the risk is
significant that a court will overturn a conviction because these
tribunals are not constitutionally authorized. Should the courts
instead uphold such unconstitutionally created tribunals, Americans
will then be left with a dangerous precedent that can be used to
undermine constitutional guarantees in other situations. Consider
Justice Jackson's thoughts in his Korematsu dissent:
[A] judicial construction of the due process clause that will
sustain this order is a far more subtle blow to liberty than the
promulgation of the order itself. A military order, however
unconstitutional, is not apt to last longer than the military
emergency. . . .But one a judicial opinion rationalizes such an order
to show that it conforms to the Constitution. . .the Court for all time
has validated the principle of racial discrimination in criminal
procedure and of transplanting American citizens. The principle then
lies about like a loaded weapon. . . .A military commander may overstep
the bounds of constitutionality, and it is an incident. But if we
review and approve, that passing incident becomes the doctrine of the
Constitution. There it has a generative power of its own, and all that
it creates will be in its own image. Korematsu v. United States, 323
U.S. 214, 245-46 (1944) (Jackson, J., dissenting). Precisely because
courts are not equipped to assess the national security implications of
various measures, this body has a vital role to play in balancing the
national security against our constitutional tradition of individual
liberties.
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The Nazi Saboteur Case, Ex Parte Quirin, Is Not Appropriate Precedent
The Administration has repeatedly pointed to the fact that
President Roosevelt issued an order permitting the military trial of
eight Nazi saboteurs. The Supreme Court upheld the constitutionality of
the military tribunals in the Quirin case, but did so in a way that
militates against, not for, the constitutionality of the present
Military Order.
In Quirin, formal war had been declared by the Congress. The
Supreme Court opinion is rife with references to this legislative
authorization for the tribunals. E.g., 317 U.S., at 26 (``The
Constitution thus invests the President, as Commander in Chief, with
the power to wage war which Congress has declared'') (emphasis added);
Id., at 25 (``But the detention and trial of petitioners--ordered by
the President in the declared exercise of his powers as Commander in
Chief of the Army in time of war and of grave public danger--are not to
be set aside by the courts without the clear conviction that they are
in conflict with the Constitution or laws of Congress constitutionally
enacted'') (emphasis added); Id., at 35 (stating that ``those who
during time of war pass surreptiously from enemy territory into are
own. . .have the status of unlawful combatants punishable as such by
military commission'') (emphasis added); Id., at 42 (``it has never
been suggested in the very extensive literature of the subject that an
alien spy, in time of war, could not be tried by a military tribunal
without a jury'') (emphasis added). What's more, the Court, found that
two portions of legislation, the Articles of War, 10 U.S.C. Sec. 1471-
1593, and the Espionage Act of 1917, 50 U.S.C. Sec. 38, had recognized
the validity of military tribunals in times ``of war.'' Quirin, 317
U.S. at 26-27. But applicable legislation here is lacking.\6\ Indeed,
the Quirin Court explicitly reserved the question of the President's
unilateral power: ``It is unnecessary for present purposes to determine
to what extent the President as Commander in Chief has constitutional
power to create military commissions without the support of
Congressional legislation. For here Congress has authorized trial of
offenses against the law of war before such commissions.'' Id., at
29.\7\
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\6\ The Articles of War appeared at 10 U.S.C. Sec. Sec. 1471-1593
(1940) but was later replaced by the Uniform Code of Military Justice,
10 U.S.C. Sec. Sec. 801 et seq., which preserves the recognition of the
military commissions as having concurrent jurisdiction with the courts-
martial when authorized by statute or when trying those who violate the
law of war. 10 U.S.C. Sec. 821. Congress's authority here arises out of
Article I, Sec. 8, cl. 10 of the United States Constitution which
confers power upon the Congress to ``define and punish. . .Offenses
against the Law of Nations. . .'' The common law of war is a subset of
the law of nations. See In re Yamashita, 327 U.S. 1, 7 (1946).
\7\ It is notable that the some of the main proponents of military
tribunals for terrorists have noted that affirmative Congressional
authorization is necessary. See Spencer J. Crona & Neal A. Richardson,
Justice for War Criminals of Invisible Armies: A New Legal and Military
Approach to Terrorism, 21 Ok. City. L. Rev. 349, 398-99 (1996) (stating
that the tension between Quirin and Milligan ``can be resolved simply
by Congress declaring terrorism to be a form of unlawful belligerency,
from which ordinary law no longer secures either public safety or
private rights, and further declaring terrorists to be enemy armed
forces''); id., at 377 (discussing what ``Congressional authorization
for the use of military means against terrorism'' should provide in
order to authorize the President ``to establish a military
commission'').
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As I will discuss in detail in a moment, it cannot be maintained
that this body has acted comparably with respect to the September 11
attacks. Congress has not declared war. Congress has not stated that
the laws of war are applicable to terrorists or that military tribunals
are appropriate. It is of course within Congress' prerogative to make
these statements, and to have them acted upon by the Executive Branch
in its discretion, and later interpreted by the courts. But without a
clear statement by Congress, it is a very dangerous precedent to permit
the Executive Branch to unilaterally make such a decision. The Quirin
case does not go nearly as far as supporters of the tribunals wish,
indeed, it confirms the simple constitutional fact that Congress, not
the President, is responsible for setting up these tribunals.
Furthermore, the Quirin case took place at a time when Americans
were in a full-scale world war, where the exigencies of the situation
demanded a quick result. See Quirin, 317 U.S., at 39 (stating that
military tribunals ``in the natural course of events are usually called
upon to function under conditions precluding resort to such procedures
[as trial by jury]''). Quirin, just as the Revolutionary War, the War
of 1812, and the Civil War, were all circumstances in which there was
total war in the homeland, with large numbers of enemy troops as
occupants. There was a real danger in each that America might lose. The
Administration today, by contrast, has not made the case, or even
attempted to do so, that the circumstances are comparable. This body
might of course so find, and that would go a long way towards removing
the constitutional objections. Proportionality is an endemic feature of
our government, and deprivations of individual rights that are
proportional to the threat presented will often survive constitutional
scrutiny. In this case, however, military tribunals cannot be said to
be an automatically proportionate response to a threat. If the
Administration believes that they are, it should, as other Presidents
have done, ask the Congress for greater authority due to the nature of
the threat, not decide as much on its own.
President Roosevelt's order also strictly circumscribed the
military tribunal's jurisdiction to cases involving ``sabotage,
espionage, hostile or warlike acts, or violations of the law of war.''
Roosevelt Proclamation, 56 Stat. 1964, 1964 (July 2, 1942); Quirin, 317
U.S. at 30 (finding that prosecution did not violate prohibition on
federal common law of crime because Congress explicitly incorporated
the law of war into the jurisdiction for military tribunals). The
recent Military Order, by contrast, brings millions of green-card
holders and others into its jurisdiction. The Military Order extends
jurisdiction to ``the laws of war and other applicable laws.''
Sec. 1(e) (emphasis added); see also Sec. 4(a) (individuals will be
``tried by military commission for any and all offenses triable by
military commissions'') (emphasis added).
These distinctions are all made against the backdrop of a case that
said that its holding was an extremely limited one. The Court
explicitly said that it had ``no occasion now to define with meticulous
care the ultimate boundaries of the jurisdiction of military
tribunals,'' and that ``[w]e hold only that those particular acts
constitute an offense against the law of war which the Constitution
authorizes to be tried by military commission.'' Quirin, 317 U.S., at
45-46. Indeed, Quirin recognized that the use of tribunals may be
conditioned by the Sixth Amendment.\8\
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\8\ We may assume that there are acts regarded in other countries,
or by some writers on international law, as offenses against the law of
war which would not be triable by military tribunal here, either
because they are not recognized by our courts as violations of the law
of war or because they are of that class of offenses constitutionally
triable only by a jury. It was upon such grounds that the Court denied
the right to proceed by military tribunal in Ex parte Milligan,
supra.'' Id., at 29
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The Nazi saboteur case, as Justice Frankfurter later called it, is
not ``a happy precedent.'' Danielsky, The Saboteurs' Case, 1 J. S. Ct.
Hist. 61, 80 (1996) (quoting memorandum from Justice Frankfurter).\9\
The real reason President Roosevelt authorized these military tribunals
was to keep evidence of the FBI's bungling of the case secret. One of
the saboteurs, George Dasch, had informed the FBI of the plot upon his
arrival in the United States, and the FBI dismissed his story as a
``crank call.'' Later, the saboteur went to Washington, checked into
the Mayflower Hotel, and told his story in person to the FBI. The FBI
still did not believe him. It was only after he pulled $80,000 in cash
out of his briefcase that the government took him seriously. With
Dasch's help, the government arrested the other saboteurs. Yet the
government put out press releases suggesting that it was the FBI's
diligence that resulted in the arrests.\10\ ``This was the beginning of
government control on information about the Saboteurs' Case and the
government's successful use of the case for propaganda purposes.''
Danielsky, supra, at 65.
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\9\ The private papers of the Justices reveal that Chief Justice
Stone struggled to find a way to claim that Congress had authorized the
tribunals, and his answer appears dubious. ``Stone answered it uneasily
by interpreting a provision in Article of War 15. . . .Thus Congress,
he said, in enacting Article 15, had adopted the law of war as a system
of common law for military commissions. To arrive at this
interpretation, Stone ignored the legislative history of Article 15. .
.He also ignored the petitioners' argument that it was settled doctrine
that there is no federal common law of crime. Finally, he ignored the
constitutional problems raised by his interpretation.'' Danielsky,
supra, at 73. See also id., at 76 (quoting Justice Black's memorandum
on the case, which stated that I ``seriously question whether Congress
could constitutionally confer jurisdiction to try all such violations
before military tribunals. In this case I want to go not further than
to declare that these particular defendants are subject to the
jurisdiction of a military tribunal because of the circumstances. .
.'').
\10\ Attorney General Biddle stated that as a result of the
secrecy, ``it was generally concluded that a particularly brilliant FBI
agent, probably attending the school in sabotage where the eight had
been trained, had been able to get on the inside. . .''Danielsky,
supra, at 65. Biddle insisted on absolute secrecy, Secretary of War
Stimson later wrote in his diary, because of particular evidence that
was likely to come out at a public trial. This evidence included
Dasch's cooperation, the FBI's ignoring of Dasch's phone call, and the
delay in reporting discovery of the saboteur's landing. Id., at 66.
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Finally, even if one is left believing the Quirin case provides
some judicial precedent in favor of the present military order, this
Body is by no means compelled to believe that this judicial decision is
the last word on what is constitutional. After all, two years after
Quirin, the same Supreme Court upheld the internment of Japanese
Americans during World War II in the infamous Korematsu case, 323 U.S.
214 (1944). Korematsu demonstrates that judges will sometimes bend over
backwards to defer to a claim of military necessity. Judges are
generalists and not particularly suited to evaluating claims of
military necessity. For that reason, judicial precedents are not always
a helpful guide in determining the meaning of the Constitution, for
their determinations are made under traditions that sometimes under
enforce certain constitutional rights. See Sager, Fair Measure: The
Legal Status of Under enforced Constitutional Norms, 91 Harv. L. Rev.
1212 (1978). This body, by contrast, has the security clearances and
the expertise to scrutinize and evaluate claims of military necessity
in light of its commitment to the Constitution, see U.S. Const., Art.
VI [2]. This is particularly the case here, for the Constitution's
meaning has evolved in several ways since 1942, not only with respect
to equality, but particularly with respect to the treatment of criminal
defendants and conceptions of due process. See Katyal, Legislative
Constitutional Interpretation, 50 Duke L.J. 1335, 1346-59.
In sum, while the natural tendency is to look to the Quirin case,
Quirin is only a narrow (and inapplicable) exception to the general
presumption against military trials in this nation. What's more, Quirin
was decided before the due process revolution in the federal courts,
which took place only in the 1960s. It is not even clear that the
limited holding in Quirin exists today.
Other Applicable Precedent
In circumstances that echo some of today's more far reaching
provisions, a military commission tried a group of men for conspiracy
against the United States in 1864. Ex Parte Milligan, 71 U.S. 2, 120
(1866). Milligan sought a writ of habeas corpus, arguing that a
military court could not impose sentence on civilians who were not in a
theater of war. Several features of the opinion are relevant. The Court
disagreed with the government's claim that Constitutional rights did
not operate in wartime, explaining the reach of the Fourth, Fifth, and
Sixth Amendments, and stating that the founders of the Constitution
foresaw that troublous times would arise, when rules and people
would become restive under restraint. . .and that the
principles of constitutional liberty would be in peril. . .
.The Constitution of the United States is the law for rulers
and people, equally in war and peace, and covers with the
shield of its protection all classes of men, at all times, and
under all circumstances.''
Milligan, 71 U.S., at 120. see also William H. Rehnquist, All the
Laws But One: Civil Liberties in Wartime 137 (1998) (``The Milligan
decision is justly celebrated for its rejection of the government's
position that the Bill of Rights has no application in wartime. It
would have been a sounder decision, and much more widely approved at
the time, had it not gone out of its way to declare that Congress had
no authority to do that which it never tried to do.'')
Milligan went on to hold that when courts are closed due to war,
then martial law may be justified in limited circumstances:
If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice according
to law, then, on the theater of active military operations, where war
really prevails, there is a necessity. . .as no power is left but the
military.. . .As necessity creates the rule, so it limits its duration;
for, if this government is continued after the courts are reinstated,
it is a gross distortion of power. Martial rule can never exist where
courts are open, and in the proper and unobstructed exercise of their
jurisdiction. It is also confined to the locality of actual war.
Because, during the [Civil War] it could have been enforced in
Virginia, where the national authority was overturned and the courts
driven out, it does not follow that it should obtain in Indiana, where
that authority was never disputed, and justice was always administered.
Milligan, 71 U.S., at 127. This part of Milligan was distinguished
in Quirin, but only on the unique facts of the case, for the Quirin
defendants were charged with violating the Law of War after a declared
war and were charged in the locality of the actual war. Under the
still-standing Milligan rule, martial law might have been appropriate
in New York City in the days immediately following the World Trade
Center attacks, when Foley Square was closed and the Southern District
of New York was not operating as usual. Military tribunals could not
exist in other states, however, and would cease in New York after the
federal courts became operational. While Milligan states the general
rule, Quirin at most provides an extremely limited exception to it.
The five Justices in Milligan's majority went so far as to prevent
military tribunals from being used even when explicitly authorized by
Congress. Their decision provoked controversy, leading Chief Justice
Chase to author a partial dissent (joined by three other Justices).
Chief Justice Chase believed that the laws of Congress did not
authorize the use of military tribunals, and therefore joined the
majority opinion in part. Milligan, 71 U.S., at 136. This opinion is
notable because it underscores the power of Congress to authorize these
tribunals:
We think that Congress had power, though not exercised, to
authorize the military commission which was held in Indiana. .
. .
Congress has the power not only to raise and support and govern
armies but to declare war. It has, therefore, the power to
provide by law for carrying on war. This power necessarily
extends to all legislation essential to the prosecution of war
with vigor and success. . .. Congress cannot direct the conduct
of campaigns, nor can the President or any commander under him,
without the sanction of Congress, institute tribunals for the
trial and punishment of offenses, either of soldiers or
civilians, unless in cases of a controlling necessity, which
justifies what it compels, or at least insures acts of
indemnity from the justice of the legislature.
We by no means assert that Congress can establish and apply the
laws of war where no war had been declared or exists.
. . . .it is within the power of Congress to determine in what
states or districts such great and imminent public danger
exists as justifies the authorization of military tribunals.
Id., at 137-40; see also Id., at 122 (majority op.) (``One of the
plainest constitutional provisions was, therefore, infringed when
Milligan was tried by a court not ordained and established by Congress,
and not composed of judges appointed during good behavior'').\11\ Under
either rule in Milligan, the majority rule or Chief Justice Chase's
dissent, the present Military Order fails. It lacks basic
constitutional protections, and has not been authorized by Congress.
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\11\ More recent military precedent also suggests that the civil
war was similar to a declared war, and that charges could be brought in
the locality of war. See Opinion of Patrick T. Henry, Assistant
Secretary, Department of the Army, March 6, 2000, available at http://
www.surratt.org/documents/muddarmy.pdf (``One might content that the
facts Ex Parte Quirinare distinguishable from those in the Mudd Case
[regarding the Lincoln assassination] because the assassination of
President Lincoln did not occur during a time of formally declared war.
However, the state of hostilities we now call the Civil Was was not
legally declared at an end until 1866. At the time of President
Lincoln's assassination, Washington D.C. served as the nation's
military headquarters and was a fortified city. It remained under
martial law for the duration of the Civil War. . .Soldiers, for the
most part, conducted civil policing in and around the city. Under these
circumstances, conditions tantamount to a state of war existed at the
time of President Lincoln's assassination'').
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In another World War II case, the Court faced the issue of the
Executive's authority to order military tribunals to try violators of
the law of war. In In re Yamashita, 327 U.S. 1 (1946), General
Yamashita of the Imperial Japanese Army was tried and convicted by a
military commission ordered under the President's authority.\12\ The
Court held that the trial and punishment of enemies who violate the law
of war is ``an exercise of the authority sanctioned by Congress, to
administer the system of military justice recognized by the law of war.
That sanction is without qualification as to the exercise of this
authority so long as a state of war exists--from its declaration until
peace is proclaimed.'' Id., at 11-12 (emphasis added).\13\
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\12\ In this case, the President had proclaimed that ``enemy
belligerents who, during time of war, enter the United States, or any
territory or possession thereof, and who violate the law of war, should
be subject to the law of war and to the jurisdiction of military
tribunals.'' 327 U.S., at 10. This Presidential order was specifically
predicated on a state of war existing between two belligerent powers.
\13\ Yamashita also recognized that the very existence of these
commissions grew out of Congress's War Power and not any Executive
authority. Id. at 12-13 (noting ``[t]he war power, from which the
[military] commission derives its existence'' and that the military
tribunals had ``been authorized by the political branch of the
Government'').
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The Supreme Court dealt with the use of military commissions again
in Madsen v. Kinsella, 343 U.S. 341 (1952), where the dependant wife of
an American serviceman was convicted by military commission for the
murder of her husband. The Court found it within the President's power
to establish a military tribunal but under certain constraints. Madsen
stated that these commissions ``have been constitutionally recognized
agencies for meeting many urgent governmental responsibilities related
to war.'' Id. at 346. As such, the Court recognized that these
tribunals derive their authority from the Congress' power to ``declare
war.'' Id. at 346 n.9, and from the occupation of Germany and the
recent ``cessation of hostilities.'' Id., at 348.\14\
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\14\ The Court quotes from Winthrop, Military Law and Precedents,
831 (2d ed. 1920), stating ``it is those provisions of the Constitution
which empower Congress to `declare war' and `raise armies,' and which,
in authorizing the initiation of war, authorize the employment of all
necessary and proper agencies for its due prosecution, from which the
tribunal derives it original sanction. Its authority is thus the same
as the authority for the making and waging of war and for the exercise
of military government and martial law.'' The court thus subscribes to
the view that military commissions derive any authority they have from
Congressional sanction under the war powers. They act only pursuant to
Congressional delegation of authority.
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Of course, there may be times when Congress cannot declare war, for
one reason or another.\15\ But in many of those cases, the Congress can
of course specifically authorize a military tribunal as part of a
resolution authorizing force or as stand-alone legislation. If a
particular Administration feels that such Congressional activity is not
feasible (due to, for example, an invasion), it bears a burden in
justifying a unilateral course of action. But in a case like the one
today, where Congress is able to meet (indeed, has been meeting to
respond to several Administration requests), this justification for
unilateralism does not appear tenable.
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\15\ A declaration of war in today's circumstances may be possible.
See Prize Cases, 67 U.S. 635, 666 (1863) (``But it is not necessary to
constitute war, that both parties should be acknowledged as independent
nations of sovereign States.'').
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Congress has not Authorized the Military Tribunals
The present Military Order relies on the Resolution passed by
Congress for legal support. The Resolution states: ``That the President
is authorized to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September
11, 2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United
States by such nations, organizations or persons.'' Pub. L. No. 107-40,
115 Stat. 224 Sec. 2(a). This Resolution is patently quite far from a
declaration of war, and is limited in many respects. Significantly, the
Resolution passed by Congress,
1) restricts its reach only to ``force,''
2) applies only to persons involved in some way in the
September 11 attacks, and
3) permits such activity ``in order to'' avert prospective
damage to the United States.
Now compare the Resolution with the Military Order, which,
1) goes well beyond any conceivable definition of ``force,''
2) does not confine its reach to persons involved in the
September 11 attacks, but goes so far as to permit any
terrorist unconnected to the attacks to be tried before a
military tribunal,
3) is entirely retrospective, meting out sentences for past
acts, and
4) extends its jurisdiction to places that are not localities
of armed conflict.
A tougher question is presented by persons in Afghanistan, for the
Use of Force Resolution when read in conjunction with the Uniform Code
of Military Justice could suggest military jurisdiction for those that
are the direct targets of Congress' Resolution. As I will explain in a
moment, this reading is questionable, but the case is a closer one. But
the Military Order goes much, much farther than this, and illustrates
the precise dangers with unilateral determinations by the Executive.
The Order does not confine its reach to those involved in the September
11 attacks. It states that individuals subject to the order include
anyone whom,
``there is reason to believe. . .
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit,
acts of international terrorism, or acts in preparation
therefor, that have caused, threaten to cause, or have as their
aim to cause, injury to or adverse effects on the United
States, its citizens, national security, foreign policy, or
economy; or
(iii) has knowingly harbored one or more individuals described
[in the first two categories above].
Military Order, Sec. 2(a) (emphasis added). There is absolutely no
constitutional warrant for such a dramatic expansion of the military
tribunal's authority to cover individuals completely unconnected to the
September 11 attacks, no matter how broadly the statutes and precedent
can be stretched. This is particularly important in light of the fact
that the Congress explicitly rejected proposed White House language
that would have authorized a broader use of force. See Lancaster,
Congress Clears Use of Force, Wash. Post, Sept. 15, 2001, at A4.
Subsections ii) and iii) of the Military Order therefore underscore
just how important it is for this body to carefully circumscribe the
jurisdiction and reach of a military tribunal. Without such guidance,
military tribunals can creep far beyond the circumstances of an
emergency, sweeping up many unrelated investigations. ``Mission creep''
can infect not only military operations that employ force, but also
those that involve prosecutors and judges.
In the wake of the martial law of the Civil War, Congress passed
the Posse Comitatus Act to prevent the military from becoming part of
civilian affairs. The Act states, ``Whoever, except in cases and under
circumstances expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or the Air Force as a
posse comitatus or otherwise to execute the laws shall be fined under
this title or imprisoned not more than two years, or both.'' 18
U.S.C.S. Sec. 1385 (2001). This Act reflects the underlying presumption
against blurring military and civilian life, unless Congress authorizes
otherwise or the Constitution so demands. It is instructive that this
fundamental law has itself been modified recently with respect to the
War on Drugs and immigration. See 10 U.S.C. Sec. Sec. 371-380
(authorizing Secretary of Defense to furnish equipment and personnel to
assist civilian agencies in enforcing drug and immigration laws, but
preventing the military, with the exception of the Coast Guard, from
conducting ``a search and seizure, an arrest, or other similar
activity''). The Posse Comitatus Act underscores the general
presumption against civilian life becoming subject to military law,
unless Congress or the Constitution explicitly say otherwise. The
recent Military Order undercuts this post Civil War tradition, and does
so unilaterally.
As previously stated, the Uniform Code of Military Justice (UCMJ)
is still on the books. It might be thought that the language in the
Uniform Code, which recognizes the concurrent jurisdiction of military
tribunals, 10 U.S.C. Sec. 821,\16\ constitutes sufficient congressional
authorization of them under the rule laid down in Quirin. I have
already explained why Quirin, and its interpretation of the predecessor
statute to the UCMJ, does not come close to justifying the present
Military Order. Not only the facts and opinion in Quirin, but cases
decided under the UCMJ itself suggest that this body has not authorized
the military tribunals envisioned in the recent Military Order.
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\16\ The provisions of this chapter conferring jurisdiction upon
courts-martial do not deprive military commissions, provost courts, or
other military tribunals of concurrent jurisdiction with respect to
offenders or offenses that by statute or by the law of war may be tried
by military commissions, provost courts, or other military tribunals.''
10 U.S.C. Sec. 821.
---------------------------------------------------------------------------
In United States v. Averette, 19 U.S.C.M.A. 363 (1970), a civilian
employee of the Army was charged with criminal violations in Vietnam
and tried by court-martial under the UCMJ. The United States Court of
Military Appeals there decided that, in determining the applicability
of the UCMJ, ``the words `in time of war' mean. . .a war formally
declared by Congress.'' Id., at 365 (emphasis added). Further, the
court believed that ``a strict and literal construction of the phrase
`in time of war' should be applied,'' Id., in the case of the
jurisdiction of military courts. The conclusion in this case was that
the hostilities in Vietnam, although a major military action, was not a
formal declaration of war for purposes of the military's
jurisdiction.\17\ The Court of Military Appeals followed this line of
reasoning is Zamora v. Woodson, 19 U.S.C.M.A. 403 (1970), where it held
again that the term `in time of war' means ``a war formally declared by
Congress,'' Id. at 404, and that the military effort in Vietnam could
not qualify as such. The question of whether a terrorist can even
qualify as a belligerent or engage the machinery of the ``laws of war''
is itself not clear. See Scharf, Defining Terrorism as the Peace Time
Equivalent of War Crimes, 7 ILSA J. Int'l & Comp. L. 391, 392 (2001)
(``The key is the `armed conflict' threshold. By their terms, these
conventions do not apply to `situations of internal disturbances and
tensions such as riots and isolated and sporadic acts of violence.' In
those situations, terrorism is not covered by the laws of war, but
rather by a dozen anti-terrorism conventions'').\18\
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\17\ In a rather different setting, the military courts have found
that a substantive offense, sleeping at one's post during time of war,
was possible during the Korean War. United States v. Bancroft, 3
U.S.C.M.A. 3 (1953). The Court pointed to many indicia of a wartime
situation, including special ``national emergency legislation.'' Id.,
at 5. See also United States v. Ayres, 4 U.S.C.M.A. 220 (1954)
(following Bancroft). Averette is not modified by Bancroft or Ayres, as
Averette is the more recent case and was explicitly decided in light of
these other case. While members of our military might be subject to
additional punishment based on statutes that aggravate penalties during
wartime, to apply the jurisdiction of the UCMJ to those not ordinarily
subject to it requires an affirmative act of Congress. Averette, at 365
(``We emphasize our awareness that the fighting in Vietnam qualifies as
a war that word is generally used and understood. By almost any
standard of comparison--the number of persons involved, the level of
casualties, the ferocity of the combat, the extent of the suffering,
and the impact on our nation--the Vietnamese armed conflict is a major
military action. But such a recognition should not serve as a shortcut
for a formal declaration of war, at least in the sensitive area of
subjecting civilians to military jurisdiction.'')
The Averette ruleing means that when the constitutional rights hang
in the balance, courts should read statutes as narrowly to avoid
violating these rights unless congressional intent is clear. The term
``time of war'' is ambiguous, and as such, should be read narrowly as
requiring a congressional declaration of war before constitutional
rights are abrogated in the name of national security. Congress must
speak clearly if it wishes to constrain, or allow the Executive to
constrain, civil rights through its war powers.
\18\ Making the laws of war applicable to terrorists may also raise
problems, including possibly providing them with the ``combatant's
privilege,''under which combatants are immune from prosecution for
common crimes, and prisoner of war status upon detention. Scharf,
supra, at 396-98.
---------------------------------------------------------------------------
Finally, the United States Court of Claims faced this issue in Robb
v. United States, 456 F.2d. 768 (Ct. Cl. 1972). The Court of Claims
held that the decedent's prior court-martial had not held jurisdiction
over him as a civilian employee of the Armed Forces because ``short of
a declared war,'' Id., at 771, the court-martial did not possess
jurisdiction under the UCMJ.
Thus both civil and military courts have held that the UCMJ's use
of the term ``in a time of war'' requires an actual, congressionally
declared war to provide jurisdiction over civilians for the military
courts-martial or tribunals. This strict reading should also apply to
the Court's previous rulings holding the President's power to convene
military tribunals to vest only ``in time of war.'' This strict reading
is justified not only because of the precedent established by the Court
of Military appeals, but also in light of the tremendous damage to
individual rights the Executive and the military could create if
military courts could be convened without explicit Congressional
authorization.
After all, many would be surprised to learn that the Administration
is arguing that this Body has already ratified military tribunals for
terrorists. The dusting off of an old statute passed for an entirely
different purpose and in another era raises significant constitutional
concerns when that statute is used to justify the deprivation of
individual rights. The Supreme Court often speaks in terms of ``clear
statement'' rules: if the legislature wants to deprive someone of a
constitutional right, it should say so clearly, otherwise the
legislation will be construed to avoid the constitutional difficulty.
E.g., Kent v. Dulles, 357 U.S. 116, 129-30 (1958) (holding that the
Secretary of State could not deny passports on the basis of Communist
Party membership without a clear delegation from Congress, and that
this permission could not be ``silently granted'') (emphasis
added).\19\ Without a clear statement by this Congress about the need
for military tribunals, it will be difficult for a civilian court to
assess the exigencies of the situation and to determine whether the
circumstances justify dispensing with jury trials, grand juries, and
the rules of evidence on habeas review.
---------------------------------------------------------------------------
\19\ Dames & Moore v. Regan, 453 U.S. 654 (1981) loosened the
definition of ``implied Congressional authorization'' somewhat but did
not find that lack of Congressional voice would constitute implicit
authorization. The decision expressly disclaimed any attempt to use its
precedent in other cases: ``we attempt to lay down no general
`guidelines' covering other situations not involved here, and attempt
to confine the opinion only to the very questions necessary to decision
of the case.'' Id., at 661. In Dames, a case in which a constitutional
right was probably not at stake, the Court approved an Executive Order
which terminated all litigation between United States nationals and
Iran in return for the establishment of a claims tribunal to arbitrate
the disputes. The Court did not find explicit authorization by Congress
but grounded a finding of implied authorization in the fact the
Congress had passed the International Claims Settlement Act of 1949
which approved another executive claims settlement action and provided
a procedure to implement future settlement agreements. Also, the
legislative history of the International Emergency Economic Powers Act
(IEEPA) showed that Congress accepted the authority of the President to
enter into such settlement agreements. Id. In the current case,
Congress has passed no such legislation which recognizes or ratifies
the President's authority to convene military tribunals without a
declaration of war, and the constitutional rights at stake are
significant. As such, implicit approval of Congress cannot be found
here as it was in Dames & Moore.
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Even if there is some ambiguity in the UCMJ about the meaning of
``time of war,'' standard principles of legislative interpretation
would counsel reading the statute to avoid constitutional difficulties,
and mean that the President lacks authority.\20\ As Justice Jackson put
it in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 673 (1952), in the zone of twilight between the powers of
Congress and the President, ``any actual test of power is likely to
depend on the imperatives of events and contemporary imponderables. . .
.'' One of these imperatives is the preservation of individual rights.
In Valentine v. United States ex rel Neidecker, 299 U.S. 5 (1936), the
Court considered the Executive's power to extradite under a treaty
where the treaty did not provide for such extradition. Although this
case took place before Youngstown, it is clear that this Executive
action would fall into Jackson's zone of twilight. The Court did not
allow the extradition because of the trampling of individual rights:
``the Constitution creates no executive prerogative to dispose of the
liberty of the individual. Proceeding against [an individual] must be
authorized by law. . . .It necessarily follows that as the legal
authority does not exist save as it is given by an act of Congress. .
.[i]t must be found that [a] statute. . .confers the power.'' Id. at 9;
see generally Silverstein, Imbalance of Powers 115-16 (1997) (stating
the proposition that when it comes to individual liberties, the Court
is hesitant to defer to the Executive in the absence of specific
Congressional mandate).\21\
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\20\ A comparison between the Military Order and President Truman's
seizure of the steel mills via Executive Order is instructive. The
Supreme Court declared Truman's Executive Order un constitutional
because it ``was a job for the Nation's lawmakers, not for its military
authorities. . . .In the frame work of our Constitution, the
President's power to see that the laws are faithfully executed refutes
the idea that he is to be a lawmaker.'' Youngstown, supra, at 587
(majority cop. per Black, J.). Even though legislative action might
``often be cumbersome, time-consuming, and apparently inefficient,''
Justice Douglas stated, that was the process our Constitution set up.
See id., at 629; see also id. (``The doctrine of the separation of
powers was adopted by the Convention of 1787, not to promote efficiency
but to preclude the exercise of arbitrary power. . .to save the people
from autocracy'') (quoting Brandeis, J., Dissenting in Myers v. United
States). See also Youngston, id., at 650 (Jackson, J., concurring)
(`Aside from suspension of the privilege of the writ of habeas corpus.
. .[the founders made no express provision for exercise of
extraordinary authority because of a crisis. I do not think we
rightfully may so amend their work, and, if we could, I am not
convinced it would be wise to do so. . . .[T]he President of the
[German] Republic, without concurrence of the Reichstag, was empowered
temporarily to suspend any or all individual rights if public safety
and order were seriously disturbed or endangered. This proved a
temptation to every government, whatever its shade of opinion, and in
13 years suspension of rights was invoked on more the 250 occasions.
Finally, Hitler persuaded President Von Hindenberg to suspend all such
rights, and they were never restored.'').
\21\ The Pentagon Papers Case, N.U. Times Co. v. United States, 403
U.S. 713 (1971), also underscores the constitutional problems with
unilateral executive action. In that case, the Court, in a per curiam
opinion, denied the President an injunction to block the New York Times
and the Washington Post from publishing certain documents which the
Administration claimed would be damaging to the military effort in
Vietnam. Justice Brennan observed that the Executive acted without
authorization from Congress. Previously, Congress had considered
legislation which would have made such disclosure criminal. Brennan
stated that ``[i]f the proposal. . .had been enacted, the publication
of the documents involved here would certainly have been a crime.
Congress refused, however, to make it a crime.'' Id. at 746. Justice
Douglas indicated that the case might have been different with specific
Congressional authorization, stating ``[t]here is. . .no statute
barring the publication by the press of the material which the Times
and the Post seek to use.'' Id. at 720. Douglas also conceded that a
state of declared war might authorize such action on the part of the
Executive when he state ``[t]he war power stems from a declaration war.
. . .Nowhere (in the Constitution] are presidential wars authorized. We
need not decide therefore what leveling effect the war power of
Congress might have.'' Id. 722. Similarly here, a declared state of war
vests the President with the power to abrogate some Fifth Amendment
rights but in the absence of such declaration of war or specific
Congressional authorization, the Executive's attempt to remove Fifth
Amendment protections through the use of military tribunals is
constitutionally problematic.
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In the current case, the Executive Order is made applicable even to
resident aliens who are constitutionally vested with due process
rights. As such, the Court should be wary of allowing the Executive to
unilaterally abrogate these individual protections.\22\
---------------------------------------------------------------------------
\22\ Additionally, if one subscribes to Justice Murphy's view that
the Fifth Amendment protects all people accused by the Federal
Government and ``[n]o exception is made as to those who are accused of
war crimes or as to those who possess the status of any enemy
belligerent,'' then it would be logical that the Executive not be
allowed to unilaterally abrogate individual rights of even non-resident
aliens. In re Yamashita, 327 U.S. at 26 (Murphy, J., dissenting)
(stating that ``[t]he immutable rights of the individuals, including
those secured by the due process clause of the Fifth Amendment, belong
not alone to the members of those nations that excel on the battlefield
or that subscribe to the democratic ideology. They belong to every
person in the world, victor or vanquished, whatever may be his race,
color or beliefs. They rise above the status of belligerency or
outlawry. They survive any popular passion of frenzy of the moment. . .
.Such is the universal and indestructible nature of the rights which
the due process clause of the Fifth Amendment recognizes and protects
when life or liberty is threatened by virtue of the authority of the
United States.'').
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Finally, if the UCMJ were stretched to give the President power to
create a tribunal in this instance, it would leave the statute so broad
as to risk being an unconstitutional delegation of power. Such a
statute would leave the President free to define a ``time of war,''
grant him the discretion to set up military tribunals at will, bestow
upon the Executive the power to prosecute whomever he so selects in a
military tribunal, and give him the power to try those cases before
military judges that serve as part of the Executive Branch and perhaps
even the ability to dispense with habeas corpus and review by an
Article III court. It would be a great and unbounded transfer of
legislative power to the Executive Branch, a claim that every defendant
before the tribunal would raise repeatedly. See Clinton v. City of New
York, 118 S. Ct. 2091, 2108-10 (Kennedy, J., concurring); Industrial
Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 687
(1980) (Rehnquist, J. Concurring); American Textile Mfrs. Inst., Inc.
v. Donovan, 452 U.S. 490, 545 (1981) (Rehnquist, J., dissenting);
California Bankers Ass'n v. Schultz, 416 U.S. 21, 91-93 (1974)
(Brennan, J., dissenting).
There is one other aspect of the Military Order that is
constitutionally troubling: its secrecy.\23\ Government secrecy is a
tremendously dangerous, though important, power. The Constitution was
designed to avoid secrecy when the criminal process has been engaged.
Our Founders feared secret trials, knowing that the impulse would be
too great for the prosecutor to abuse his powers. See U.S. Const., Am.
VI; cf., Morrison v. Olson, 487 U.S. 654, 728-29 (1988) (Scalia, J.,
dissenting).
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\23\ There is also a second strain of unilateralism in the Military
Order, that of unilateralism in our foreign policy. Spain has already
refused to extradite suspects in the September 11 investigation until
America promises not to subject them to a military trial. The upshot of
the military order may be to weaken not strengthen, our ability to
conduct thorough investigations, to interview material witnesses, and
prosecute those responsible. Again, these costs of the tribunals may be
worth it, but these are the types of determinations that are
appropriate for Congressional oversight.
---------------------------------------------------------------------------
When criminal trials take place in open court in front of a jury of
one's peers, a tremendous checking function exists. Yet the Military
Order scraps all of this, and permits trials to be conducted in secret,
without the attention of press or peers. Nothing will check the power
of the prosecutor in these trials. Our enemies will call them ``show
trials'' to cover up for our government's failures, our friends will
wonder why American justice cannot handle those who are obviously
culpable. And a dubious precedent will be set that gives the President
the power to establish these tribunals in circumstances untethered to
formal declarations of war. If the circumstances demand secret trials,
this body can so authorize them. Our Constitution and laws necessarily
require many procedures before the cloak of government secrecy can be
worn.
Attorney General Order No. 2529-2001 Raises Serious Constitutional
Concerns and Jeopardizes the Criminal Convictions of those Responsible
for Terrorism
A similar analysis of executive unilateralism applies to Attorney
General Order No. 2529-2001. This regulation was announced with no
legislative consideration whatsoever. It comes close to infringing both
Fourth Amendment right to privacy and the Sixth Amendment right to
counsel. Those who are the subject of the rule have not been charged
with a crime, for the order permits monitoring of ``inmates,'' defined
under this rule to include not merely criminal convicts, but anyone
``held as witnesses, detainees or otherwise.'' The government is
currently detaining well over 1000 individuals, some on immigration
violations, some as possible suspects, and still others who are
material witnesses, all of whom are subject to such monitoring. The
monitoring may occur, not on a probable cause standard, but whenever
the Justice Department determines that ``reasonable suspicion exists to
believe that an inmate may use the communications with attorneys. . .to
facilitate acts of terrorism.'' Id. Moreover, the determination that
someone is too threatening to speak privately with counsel is made not
by a judge, but by the executive branch acting unilaterally, in
contradistinction to other legislative procedures such as the Foreign
Intelligence Surveillance Act (FISA).
Again, this dramatic order, if carefully circumscribed, might be
justified on national security grounds, but it is the type of action
that requires legislation, not a unilateral decision by the Executive
Branch. After all, ``the attorney-client privilege under federal law
[is] the oldest of the privileges for confidential communications known
to the common law.'' United States v. Zolin, 491 U.S. 554, 562 (1989).
My analysis here will not dwell on judicial cases, for a good
reason, there are none. The Government has not issued such a sweeping
ruling in its entire history. All previous precedents pale in
comparison to the major change of law issued by the Attorney General.
To be sure, there are indications that both the Fourth Amendment and
Sixth Amendment are violated when the government monitors conversations
between attorneys and their clients. But my argument is really one
based on common sense: such an intrusion into private affairs can only
be justified by compelling circumstances. Standard separation of powers
principles suggest that such a justification be announced by Congress,
in the form of law, and enforced at the discretion of the President.
While defenders of the regulation have pointed out that separate
teams for ``prevention'' and ``prosecution'' will be set up, the result
of this form of monitoring is to chill the relationship between
attorney and client. Confidentiality is the essence of representation
in this privileged relationship. As a result of the new regulation,
people will not be able to consult their lawyers without the risk of a
government agent listening to their conversation. The conversation
might be about the most private matters imaginable--a divorce created
in part by the government's detention, for example. A long tradition
has prevented the government from intruding into conversations between
lawyer and client, for such matters may be deeply private ones, subject
to traditional fourth amendment protection. Amar & Amar, The New
Regulation Allowing Federal Agents to Monitor Attorney-client
Conversations: Why it Threatens Fourth Amendment Values, Find law, Nov.
16, 2001, at http://writ.news.findlaw.com/amar/20011116.html.
Without the order, clients might talk to their lawyers about
arranging plea bargains and other deals in exchange for information
about future plots of terrorism. In the wake of the Regulation, these
conversations may conceivably to dry up, resulting in the government
receiving less, not more, information. Again, the Justice Department
might have special reason to discount this risk, and special reason to
believe that clients are passing messages through their attorneys. But
if so, it is up to them to make that case to this Body.
As anyone who has worked with intelligence data knows, there are
often mistakes. This is natural given the shadowy world of informants
and purchased information, and circumstances in the wake of September
11 may justify holding people in detention on the basis of such data,
despite these mistakes. But to go farther than this, and to abrogate
the historic relationship between attorney and client in the name of
national security, threatens constitutional freedoms, and, indeed, may
threaten the criminal convictions of these individuals. This is
particularly the case when a series of less restrictive alternatives
exist to the regulation. See Amar & Amar, supra (discussing ``cleared
counsel'' approach in Classified Information Procedures Act and
videotaping of attorney/client conversations that could become
reviewable ex parte by a judge).
Congressional legislation authorizing such searches will
undoubtedly put such a regulation on stronger constitutional footing.
The Fourth Amendment focuses on reasonableness, and one way in which
courts assess reasonableness is by looking to Congress. Because there
is a ``strong presumption of constitutionality due to an Act of
Congress, especially when it turns on what is `reasonable,''' United
States v. Di Re, 332 U.S. 581, 585 (1948), the Court has in certain
circumstances chosen to ``defer to [the] legislative determination''
about the safeguards necessary for searches and seizures under a
particular regulatory scheme. Donovan v. Dewey, 452 U.S. 594, 603
(1981). see also Amar, Fourth Amendment, First Principles, 107 Harv. L.
Rev. 757, 816 (1994) (``Legislatures are, and should be, obliged to
fashion rules delineating the search and seizure authority of
government officials. . . .In cases of borderline reasonableness, the
less specifically the legislature has considered and authorized the
practice in question, the less willing judges and juries should be to
uphold the practice.''). Without legislative approval, by contrast,
courts may well frown on such an unprecedented intrusion into privacy.
See Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951) (Sixth
Amendment violated by government interception of private telephone
consultations between the accused and lawyer); Hoffa v. United States,
385 U.S. 293, 306 (1966) (assuming without deciding that Coplon is
correct).
While some have claimed that United States v. Noriega, 764 F. Supp.
1480 (S.D. Fla. 1991) justifies the immense monitoring order involved
here, a close reading of Noriega reveals otherwise. It is telling that
the main precedent cited by defenders of the regulation is a district
court opinion from a single district in Florida. In the case, former
Panamanian dictator Manuel Noriega claimed that the interception of his
phone calls while in prison (but not those with his attorneys) violated
his Fourth Amendment right, and that his Sixth Amendment right was
violated when conversations with his attorneys were intercepted. The
district court decision dismissed the latter claim because the
government did not intentionally intercept the attorney/client phone
calls, see 764 F. Supp., at 1489, a claim that the government can in no
way make today. The AG Regulation contemplates intentional monitoring
of these conversations. The Fourth Amendment claim Noriega put forth
was not at all about monitoring of attorney/client conversations, Id.,
at 1490, and therefore did not decide the difficult issue raised by the
Attorney General's Regulation. Moreover, the Noriega monitoring was
done under very limited circumstances where probable cause was almost
certainly met and the search was as reasonable as the facts were
unusual. Noriega did not concern a sweeping order such as the one
involved today, which, again, targets even those held as material
witnesses.
In this respect, a comparison with FISA is helpful. When the
Circuit Courts were in conflict on the question of whether the
President has inherent authority to conduct surveillance without a
prior judicial screen, compare Zweibon v. Mitchell, 516 F.2d 594 (D.C.
Cir. 1975) (disclaiming executive power) with United States v. Butenko,
494 F.2d 593 (3d Cir. 1974) (upholding it), Congress and the President
compromised in the Foreign Intelligence Surveillance Act of 1978. The
Act rejected the notion that the executive may conduct surveillance
within the U.S. unbridled by legislation.\24\ FISA was re-affirmed and
amended just last month with the passage of the USA PATRIOT Act.
---------------------------------------------------------------------------
\24\ See Pub. L. No. 95-511, 92 Stat. 1783 (codified as 50 U.S.C.
Sec. Sec. 1801-11 (2001)); Americo R. Cinquegrana, The Walls (and
Wires) Have Ears: The Background and First Ten Years of the Foreign
Intelligence Act of 1978, 137 U.Pa. L. Rev. 793 (1989).
---------------------------------------------------------------------------
The approach taken with the passage of FISA disclaimed any pretense
of unilateralism. At that time, the Senate Judiciary Committee declared
that the FISA was a ``recognition by both the executive branch and the
congress that the statutory rule of law must prevail in the area of
foreign intelligence surveillance.''.'' S. Rep. No. 95-604, at 7 (1977)
(emphasis added). The Senate Intelligence Committee announced that the
FISA represented a ``legislative judgment that court orders and other
procedural safeguards are necessary to insure that electronic
surveillance by the U.S. government within this country conforms to the
fundamental principles of the Fourth Amendment.'' S. Rep. No. 95-701,
at 13 (1978).
Speaking for the executive branch before this Committee, Attorney
General Bell himself agreed to this judgment, praising the Act because
`` `for the first time in our society the clandestine intelligence
activities of our government shall be subject to the regulation and
receive the positive authority of a public law for all to inspect.' ''
Id. at 7 (citation omitted). He praised it because, as he said, `` `it
strikes the balance, sacrifices neither our security nor our civil
liberties, and assures that the abuses of the past will remain in the
past and that the dedicated and patriotic men and women who serve this
country in intelligence positions, often under substantial hardships
and even danger will have the affirmation of Congress that their
activities are proper and necessary.' '' Id. (emphasis added). Again
today, we find ourselves in a world where we need recognition both by
the President and by Congress that the statutory rule of law must
prevail in the area of foreign intelligence surveillance. The world is
not so different today that we do not need the ``positive authority of
a public law for all to inspect,'' or that we do not need procedural
safeguards to protect against the abuses of the executive branch.
Twenty-four years ago this Committee spoke that it wanted to ``curb
the practice'' by which the President and the Attorney General may
disregard the Bill of Rights on their ``own unilateral determination
that national security justifies it.'' S. Rep. 95-604, at 8-9 (emphasis
added). The executive branch at that time agreed, and since that time
the judiciary has protected that deference to legislative judgment. A
similar course of action is appropriate today.
The Possibility of Legislative Reversal of Either Executive Decision
Does Not Make Them Constitutional
The Congress today retains some formal power over both the Military
Order and the Attorney General Regulation and can use legislation to
reverse them. But this possibility does not transform either Executive
decision into a constitutional one. The Executive Branch has acted
ultra vires in issuing both of these decisions, and both lack the
appropriate constitutional stature to survive separation of powers
scrutiny. The speculative possibility of a Congressional reversal
cannot make an act of the Executive constitutional. (If President
Clinton during a budget deadlock got frustrated and decided to proclaim
his budget proposal the law of the land, and directed his Secretary of
Treasury to begin disbursements, Congress would of course have the
power to trump his ``budget'' with one of their own, but the existence
of its trumping power wouldn't make the President's initial action
constitutional.) Indeed, President Truman's Order to seize the steel
mills could have been reversed by Congress (a possibility explicitly
invited by President Truman--in contradistinction to the recent
Administration actions--who sent messages to Congress stating that he
would abide by a legislative determination to overrule his Executive
Order). The dissent in Youngstown made much of Truman's overture to
Congress, but that did not stop the Supreme Court from declaring
President Truman's action unconstitutional for overstepping his
authority.
Furthermore, there may be all sorts of barriers to Congressional
reversal: trials might be underway, in which case a Congressional
reversal might create double jeopardy problems, or the Congress might
not want to set up a dangerous confrontation between the branches in a
time of national crisis. A Congressional reversal would require not a
simple majority, but a two-thirds one (because a President would have
the power to veto the legislation proposing the reversal), therefore
such a reading of the Constitution would work a subtle but dangerous
transformation in power away from the Congress and toward the
President. A future President could then set up military tribunals in a
national crisis, declaring, for example, the ``War on Drugs'' to
require military tribunals for narcotics traffickers, and the Congress
would have to attain a two-thirds majority affirmatively reverse such a
determination. The Separation of Powers is designed precisely to guard
against such transfers of constitutional authority. Particularly
because our constitutional traditions are evolving ones, it is
dangerous for one person to be given the authority to freeze the
Constitution at a single moment in time. This body is uniquely equipped
to assess the meaning of constitutional guarantees, such as the Fourth,
Fifth and Sixth Amendments, in light of contemporary circumstances.
Conclusion
Given the national importance and fundamental commitment to
Constitutional values, the better course of action is for the President
to only act in this area when his powers are at their highest ebb,
namely, when he acts with the approval of the co-equal legislative
branch. Youngstown, 343 U.S. at 635 (Jackson, J., concurring) (when the
President acts with explicit authorization of Congress, ``his authority
is at its maximum, for in includes all that he possesses in his own
right plus all that Congress can delegate.''). Even though I am a
supporter of the unitary executive theory, which generally endorses a
broad view of constitutional powers of the President, the Military
Order and AG Regulation go too far.
The Executive Branch should therefore, at a minimum, decline to
enforce either the Military Order or the Attorney General regulation
until this body has expressly authorized these methods. The Congress
should then immediately take up the question of whether these methods
are necessary and proper, and give due weight to the views of the
Administration on this point. A united Executive-Legislative
determination, just as with FISA, the USA PATRIOT Act, and other major
national-security decisions, will best safeguard individual liberty for
the future and prevent convictions from being overturned in the ongoing
terrorism investigations. At the very minimum, Congress should consider
enacting legislation similar to the War Powers Act and laws governing
covert activity, so that the President is required 1) to notify some or
all members of Congress quickly when military tribunals are initiated,
and 2) to provide details of the cases to this body so that it may
perform its oversight function.
In conclusion, like most all Americans, I believe the
Administration is trying to make the best calls that it can. But that's
part of the point: Our Constitutional design can't leave these choices
to one man, however well intentioned and wise he may be. We do not live
in a monarchy. The structure of government commits wide-ranging
decisions such as this to the legislative process. To say this is not
to be ``soft on terrorism,'' but actually to be harder on it. We cannot
afford to jeopardize our beliefs, or to risk accusations of subverting
our constitutional tradition, simply because one branch thinks it
expedient.
Chairman Leahy. Thank you very much, Professor.
Let me ask you, General Barr--I know you have long
supported the idea of military tribunals--when did you first
consult with the administration on the option of military
tribunals, this administration?
Mr. Barr. Well, I didn't consult with anybody. I reminded
people of work that had been done previously in the Department
on this topic.
Chairman Leahy. Reminded people just on the street or
people in the administration?
Mr. Barr. Staff people in the administration.
Chairman Leahy. And when did you do that?
Mr. Barr. After September 11.
Chairman Leahy. Shortly thereafter?
Mr. Barr. Yes.
Chairman Leahy. General, I am thinking back to the time
when you were Attorney General under former President Bush. We
went through Desert Storm and Desert Shield, facing thousands
of people that we were in open conflict with.
Let me ask you, did former President Bush ever issue a
similar order for military tribunals during Desert Storm or
Desert Shield?
Mr. Barr. No.
Chairman Leahy. What about after the bombing of Pan Am
Flight 103 over Lockerbie, Scotland?
Mr. Barr. No. It was in that context which we explored the
possibility because we looked at the Nuremberg model and
considered setting up a joint military tribunal.
Chairman Leahy. And did you recommend that to the
President?
Mr. Barr. No, because my informal contacts with the Scots
indicated they were not interested in doing that, primarily
because of the death penalty.
But the Iraqi war is a good example. That was not a
declared war, but I think it would be ridiculous to say that if
the Republican Guards had started executing American prisoners
or pilots that had been shot down that we would have been
powerless to convene military courts to try them for those
violations of the laws of war. Our only option would not have
been, as some seem to suggest, bringing back Republican Guard
members and trying them in our civilian courts.
There has never been a circumstance I am aware of of an
armed foreign combatant waging war against the United States
having been tried for war crimes in a civilian court.
Chairman Leahy. But I think you have heard the testimony
that, the way it is drafted, this could go well beyond an armed
combatant directing actions against the armed forces of the
U.S.
Mr. Barr. Not at all. I think Mike Chertoff was referring
to one of FDR's orders. FDR issued two orders. One of them was
extremely broad. The second one was the one that was directed
at these specific Nazis. His first one was sweeping and applied
to anybody who was a resident of a country at war against the
United States who attempted to enter the United States for the
purpose of carrying out hostile or warlike actions.
So I think that the President's order applies to people who
commit war crimes; that is, they have to be in a state of
unlawful belligerency against the United States and commit war
crimes that are triable in military tribunals. The order says
that in Section 4.
Chairman Leahy. Do you agree with that, Mr. Heymann?
Mr. Heymann. Well, no, I don't think they have to be war
crimes. I think the order plainly applies to any terrorist act,
but the big problem is that you don't know whether the guy is a
terrorist or not.
Israel killed a Norwegian waiter on the mistaken ground
that he was one of the people responsible for the Munich
Olympics massacre of the Israeli athletic team.
This order applies to any of 20 million people,
unreviewable, whom the President believes are terrorists or
have helped terrorists or were terrorists or used to harbor
terrorists. And it is the power; it is not how it is being
exercised.
I think your first question is whether you are going to
address the claim of power of the President or whether you are
going to address its likely use, limited to a relatively few
people. And I agree with former Attorney General Barr that I
don't think there is an obligation to bring them back from
Afghanistan. But the claim of power reaches 20 million people
living in the United States and anyone in Spain, France, or
Germany, and it applies to indefinite detention without trial,
without the immigration grounds we are now using, as well as to
military trials. It is an extraordinary claim of power.
Chairman Leahy. Well, since I am going to follow the lights
very strictly for everybody, I will stop at that point and not
do a follow-up.
Senator Hatch?
Senator Hatch. Mr. Silliman, if I understand your testimony
correctly, you are willing to accept that the President can,
consistent with our laws and our Constitution, establish
military tribunals to try those accused of violating the ``law
of war.''
Mr. Silliman. That is correct, Senator.
Senator Hatch. But, apparently, your objection to the
President's order is that we were not technically at war with
Al Qaeda until after they orchestrated the September 11
attacks. Your analysis appears to me, at least, to lead to the
perplexing result that the President could lawfully order trial
by military tribunal for terrorists who commit war crimes after
the September 11 attacks, but cannot try them by military
tribunal for the September 11 attacks themselves.
Here is where I find it difficult to believe that our laws
would command such a perverse result: Even if I were inclined
to accept your analysis, I wonder how you deal with the
following fact. The President did not premise his order
exclusively on the September 11 attacks. Rather, his order
explicitly states, ``International terrorists, including
members of Al Qaeda, have carried out attacks on United States
diplomatic and military personnel and facilities abroad and on
citizens within the United States.''
Now, the question is, is it your position that it is the
province of this Congress to second-guess the President's
factual determination as to when a state of war came into
being?
Mr. Silliman. No, Senator. Let me try to explain. My
analysis is based on a distinction between what we would call
and have called terrorist acts, such as the initial bombing of
1993. The bombing of our embassies in Tanzania and Kenya in
1998 and the bombing on the USS Cole are but examples of this.
Senator Hatch. Right.
Mr. Silliman. Now, I suggest that the problem is that every
time we have looked at violations of the law of war, it has
been within the context of dealing with state actors. We are
dealing with non-state actors here, and what I am suggesting is
that on the 11th of September we dealt with 19 terrorists who
committed a horrendous act against the World Trade Center and
the Pentagon. I concede that, but we were not yet at a state of
armed conflict.
I agree with the comments that we need not be in a declared
war. I think all would agree with that, but we were not at that
moment in a state of armed conflict with any kind of recognized
entity. And it interests me that in the joint resolution of the
Congress and in the President's signing order in the
declaration of emergency issued, there is not one mention of
violations of the law of war. Continually, the reference is to
terrorist acts, terrorist acts, terrorist acts.
The rhetoric of war against terrorism has now been extended
to create a legal predicate for violations of the law of war,
and I am unwilling to go that far. I believe, as I suggest in
my statement, Senator, that the Congress could, in fact, define
violations of the Law of Nations which go far beyond the law of
war to include terrorist acts, and could do so either in
Article 21 of the Code for Military Commissions or in Article
18 to provide for courts-martial, if the Committee feels that a
higher level of due process should be in order.
That is the province of Congress, but I do admit that the
President of the United States, as Commander-in-Chief, has the
power under the law of war to bring into being military
commissions, but only to prosecute violations of the law of
war.
Senator Hatch. But you don't think the law of war applies
in this instance?
Mr. Silliman. I do not believe that the law of war applies
at 8:47 on Tuesday morning, September 11. It did at some time.
My concern, Senator, is as to a prosecution by military
commission of offenses directly related to that specific
attack. That is my concern, and I fear that if we were to lose
a case in a military commission that it would damage the entire
credibility of the President's authority.
Senator Hatch. I don't think we would have much chance of
losing the case if we could find the right people. I mean,
let's be honest about it.
In your written testimony, you acknowledge that the
Secretary of Defense has not yet established the procedures by
which the military tribunals will operate. You go on to say
that the guidelines and the modes of proof that will be
employed by such tribunals will be different than and inferior
to those employed by the military in connection with the court
martial process. I don't know how you are able to reach that
conclusion without knowing the Secretary of Defense's
forthcoming procedures.
Mr. Silliman. Senator, I concede, as has been mentioned
several times this morning, that the Secretary of Defense is
seeking guidance and counsel right now to promulgate those
regulations. No one knows to what level of due process he will
raise that bar.
Senator Hatch. But you can't presume that he will not
have--
Mr. Silliman. No, Senator. My script is the President's
order itself. As has been suggested earlier in this hearing, it
could possibly have been prudent for the administration to
consult with the Department of Defense in a further and more
extensive mode to bring those due process requirements into the
initial iteration of the order rather than leaving us as we are
now to guess.
Senator Hatch. But you could become more supportive if
those due process requirements are met?
Mr. Silliman. I could be more supportive, Senator,
certainly of trials outside this country, and I could be more
supportive of trials within this country with a high degree of
due process. However, the President always has the option of
using courts-martial, with the assistance of legislation from
this Committee and other Committees.
Senator Hatch. Ms. Martin, just one question for you. Many,
including you, have asserted that the names of each individual
being held on immigration charges should be released. In
support of that argument, you cite the Freedom of Information
Act as support for that argument.
In 1991, the Supreme Court found that the disclosure of
unredacted reports of interviews of Haitian nationals who were
interdicted and returned to Haiti, as to whether they were
harassed or prosecuted after their return, would have
constituted a clearly unwarranted invasion of privacy. That is
in U.S. Department of State v. Ray.
In so doing, the Court held, among other things, that
disclosure of the names would publicly identify the returnees,
possibly subjecting them or their families to embarrassment in
their social and community relationships, or even to
retaliatory action.
Now, my question for you is, is it not reasonable to assume
that the release of the names of those being held on
immigration violations could subject those persons to
embarrassment or harm, if and when they are released?
Ms. Martin. Senator, I think that the problem here is that
the administration and the Justice Department have made
repeated public statements saying that the hundreds of people
who have been arrested have been arrested in connection with a
terrorism investigation and the harm to their reputation will
follow from the fact that they have been identified as being
arrested in an investigation of terrorism, when there isn't, in
fact, any evidence linking them to the investigation of
terrorism.
Mr. Chertoff, I believe, correctly stated that there is no
legal prohibition against disclosing the names of those who
have been detained on immigration violations. The INS, in fact,
in implementing the Supreme Court decision in Ray which you
refer to has adopted a regulation which provides that, although
in many situations the names of immigration detainees will be
withheld, that will not be the case when questions are raised
about agency practice. I believe that that is exactly the
situation before us, and that therefore the names are required
to be released under the Freedom of Information Act.
Chairman Leahy. Thank you.
Senator Feingold?
Senator Feingold. Thank you very much, Mr. Chairman. I
would like to ask a question of Professor Katyal and Professor
Heymann.
I am concerned about statements I have read or heard in the
press recently indicating that one reason that the
administration has moved unilaterally, without authorization or
consultation with Congress, on a number of issues that we have
been discussing today, from issuing an executive order on
military tribunals to regulations on the monitoring of
attorney-client communications, apparently is that the
administration believes Congress moves too slowly in
considering and making decisions.
Professor Katyal, in your testimony you specifically
discuss the constitutional necessity of the involvement of
Congress and the dangers of unilateral actions by the executive
branch in authorizing military tribunals and monitoring of
privileged attorney-client communications.
I am wondering if both Professor Katyal and Professor
Heymann could comment on the role of Congress in times of
crisis or national emergency and the importance of
congressional authorization or consultation with the executive
branch. Obviously, I am interested in hearing you comment on
whether there isn't a valuable deliberative process that
Congress brings to our Nation that is always needed, but is
especially vital as the Nation responds to a crisis.
Let's start with Professor Katyal.
Mr. Katyal. Senator, of course, this body has, after
September 11, recalibrated and acted efficiently in things like
the USA PATRIOT Act, working with the administration on a very
quick basis. But even if this body were to be a slow one in the
future, efficiency can't be a reason to disregard the
Constitution.
President Truman, for example, said that he needed to seize
the steel mills right away because Congress wasn't going to
act, and the Supreme Court struck down that executive order and
said that efficiency can't be a reason for unilateral action.
So I think that this course of conduct is a tremendously
dangerous one not just because it disregards separation of
powers, but also because one day courts are going to review
what this military tribunal does and it may be the case that in
some circumstances a court might find that this military order
is unconstitutional as applied to some of these people.
Senator Feingold. Thank you.
Professor Heymann?
Mr. Heymann. Senator Feingold, there are obviously some
cases where the executive has to move more quickly than any
deliberative body of 100, let alone of 535, can act. But the
matter of military tribunals, particularly as applicable to, as
I keep repeating, 20 million non-citizens in the United States
is not one of those matters.
Other countries have emergency powers--they were not
written into our Constitution--that allow the president to
bypass the congress and to bypass anything like a bill of
rights when the president determines there is an emergency. We
do not have that in our Constitution. It was not part of our
tradition and I am very proud that it is not part of our
tradition.
Senator Feingold. Thank you, Professor.
Let me now ask a question of General Barr and General Bell.
As I understand the President's military order, anyone that the
President designates as a terrorist, for the purposes of the
order, would be subject to the exclusive jurisdiction of a
military commission. This has already been discussed some here
on this panel.
As such, this order could conceivably be applied to
designated terrorists or their supporters who have no
connection to Al Qaeda or to the tragic events of September 11.
Now, I would like each of you to address whether you think
that interpretation is correct and, if so, do you think that
the President could or should consider establishing military
commissions to deal with other terrorist-related acts against
United States interests perhaps in the Middle East or in
Central America.
General Barr?
Mr. Barr. Senator, I think the President has to find either
that they are members of Al Qaeda or that they are members of
other terrorist organizations that have either already
committed or are in the process of committing significant acts
of terrorism which, under Section 4 of the order, would have to
be of a magnitude and in a context which would make them
violations of the laws of war against the United States. So I
don't think it is as sweeping as people suggest, that the
potential group of people is as sweeping. But you are right
that it is not limited to Al Qaeda.
Senator Feingold. General Bell?
Mr. Bell. I think modified by the word ``international''
terrorism, and I think it has to be some act of war. I think
again--and I am not sure you were in the room when I said
this--we need to wait until the Secretary of Defense
promulgates his orders and regulations to see what a lot of
these things mean. That would be the time for the Congress to
really get into whether this can stand or whether there ought
to be some congressional legislation.
Mr. Barr. Senator, may I just--
Senator Feingold. General Barr?
Mr. Barr. You may have been out when I mentioned that we
should also bear in mind that if this is used against people in
the United States--and, of course, it could only be used
against non-citizens, but if they are in the United States,
then I think the order allows for the writ of habeas corpus for
judicial review.
So when you say exclusive jurisdiction, that is right, but
the determination up front that this is properly within the
jurisdiction of the court and there was a reasonable basis for
exercising it--Article III courts would be open to hear those
claims for people in the United States.
Mr. Bell. I agree with that.
Mr. Heymann. Though the order itself was intended to bar
all judicial review.
Mr. Barr. No, that is not right, Phil, because the language
in the order was taken from FDR's order, and the Supreme Court
in the Quirin case did not interpret that language as affecting
their ability under a writ of habeas corpus to review whether
jurisdiction was proper in the military tribunal. What that
language does is say that the person is not entitled to a de
novo Article III trial on the merits.
Senator Feingold. Do you agree with that characterization,
Professor Heymann?
Mr. Heymann. Well, I agree with General Barr that, yes,
indeed there would be habeas corpus review of, number one,
whether these tribunals were constitutionally established, and,
number two, whether the person before them came within the
terms of a constitutional tribunal.
Perhaps the order was first written for President
Roosevelt. I certainly believe General Barr on that, but it was
written with an obvious intent to eliminate all judicial
review. In other words, anyone who reads this will think that
the United States has gone to unreviewable military courts.
Mr. Bell. I come at it a little different way. I think
there is an assumption that the President would obey the law,
and there is no law that the President can suspend the writ of
habeas corpus. So that is the way I come at it.
Senator Feingold. Mr. Silliman?
Mr. Silliman. I would agree with Professor Heymann that it
is clear that there could be review by the Supreme Court as to
the jurisdiction of the tribunal, just as in the Quirin case,
but that the order appears to deny that.
There is one point, Senator, I think that has not been
raised that needs to be. The administration has walked a very
fine line in doing two things. It has tried to capitalize on
the concept of a war and acts of war, while at the same time
declaring that those in Al Qaeda are unlawful belligerants,
unlawful combatants.
The result of that is that they are denied prisoner of war
status under the Geneva Convention which would require trial by
courts-martial. So what the administration has done is forced
these people into some forum that has minimal due process, and
I think that needs to be clearly understood.
Senator Feingold. Thank you for the extra time, Mr.
Chairman.
Chairman Leahy. Thank you.
Senator Specter?
Senator Specter. Thank you all for coming. I believe this
has been enormously helpful to have this kind of an analysis. I
think that had the analysis been held before the promulgation
of the executive order, it would have been framed somewhat
differently.
The executive order does purport, I believe, on its face to
bar any judicial review. This is the specific language: ``The
individual shall not be privileged to seek any remedy or
maintain any proceeding directly or indirectly, or to have any
such remedy or proceeding sought on the individual's behalf in
any court of the United States.''
Now, that is very, very sweeping, but I think it is
correct, as noted by both General Bell and General Barr, that
it runs afoul of the Constitution which has a specific
provision to the contrary: ``The privilege of the writ of
habeas corpus shall not be suspended unless, when in cases of
rebellion or invasion, the public safety may require it.''
Mr. Bell. And then Congress does it.
Senator Specter. Well, that is not what that phrase says,
so that I believe there is a lot to be learned from what we
have been talking about today.
General Bell, I think your comment about no secret trials
is very, very helpful. When the Assistant Attorney General
testified, he talked about the need for secrecy on military
secrets, and you have been very blunt about it: ``Will the
trials be secret? No, and it is nonsense to contend
otherwise.'' I believe that this kind of a commentary will be
very helpful.
I want to turn for just a minute to the regulations
promulgated by the Attorney General on detention of aliens.
There is no distinction as to legal aliens or illegal aliens,
and in a Nation of immigrants there are a lot of people who are
aliens before they become citizens. Both of my parents, for
example, were aliens when they got to these shores.
The regulations provide that if an immigration judge
authorizes the release, it is stayed until there is an appeal
by the Board of Immigration Appeals. And if the Board of
Immigration Appeals says the person can be released, then he or
she is still not released when the commissioner certifies the
Board's custody to the Attorney General, and then the stay
continues until a decision by the Attorney General. But I do
not see any standard for making a determination as to what the
Attorney General has in mind.
We questioned earlier today whether the rules were complied
with about publication in the Federal Register, which did not
appear until after the order was put into effect, and a comment
period. The language of ``reason to believe'' may be necessary
as a minimal standard. I am not sure.
What do you think about it, Mr. Heymann? Is ``reason to
believe'' sufficient without probable cause? We do face a
tremendous threat.
Mr. Heymann. In the military order, Senator Specter?
Senator Specter. Well, military tribunals. That is the
standard, where there is reason to believe that someone is a
member of Al Qaeda or another terrorist organization.
Mr. Heymann. The question is whether to take the writing at
this point seriously. It is written as if it is a subjective
determination of the President. That Presidential determination
is plainly not meant to be reviewable by any court. It says,
``when I determine that I have reasonable suspicion.''
Senator Specter. Would you require probable cause?
Mr. Heymann. If anybody living in the United States were to
be denied civil trails or detainned indefinitely, I would
require at least that.
Senator Specter. Well, there is no language of suspicion.
It is just ``reason to believe.'' If somebody said
``suspicion,'' it would be challengeable immediately. But we do
face an enormous threat. We perhaps ought to give some thought
as to some specification perhaps a little bit beyond ``reason
to believe.''
General Bell, what do you think?
Mr. Bell. Well, some definitions in the regulations would
help because ``reasonable suspicion'' is an art form and a
well-known term in law because of use on the borders. We can
search an automobile at the border on reasonable suspicion, for
example, but this says ``reason to believe.'' But you are
talking about some immigration regulations, as I understand it.
Senator Specter. The Attorney General's detention of
aliens.
Mr. Bell. I view the whole immigration legal system as a
quagmire.
Senator Specter. That is the nicest thing that has ever
been said about it.
[Laughter.]
Senator Specter. General Barr, a final question. What do
you think about having a little activity, and perhaps others,
too, of the Department of Justice playing some sort of a role
here?
The responsibility for drafting the rules has been sent to
counsel in the Department of Defense. We are into some pretty
tricky areas here, for those of us who have been in the
criminal courts or with military tribunals or with
constitutional rights, with all of the contours and
complexities.
If you were Attorney General, would you pick up the phone
and say to the Secretary of Defense, I would like to offer you
some help?
Mr. Barr. Absolutely, and I am confident that is going to
happen. I don't know what the process was, but I know from my
own experience that I can't think of an executive order that
would be issued without having some legal review in the
Department of Justice. I would assume there was some review as
to form and legality of the order.
Now, I think you are really getting at what are the rules
of the game going to be going forward, and it is inconceivable
to me that the Department of Justice will not be heavily
involved in consulting with the Secretary of Defense and giving
them their experience in trying terrorist cases.
Senator Specter. Well, the Assistant Attorney General this
morning was not so sanguine about that. He didn't put that in
the mix.
Mr. Heymann, did you have your hand up?
Mr. Heymann. Yes. I just wanted to add a word there.
Whatever the Secretary of Defense does, the claim of
presidential power is either going to be accepted by the
Congress and the courts or it isn't, and it is an extraordinary
claim of presidential power.
The Secretary of Defense may cut it back to reasonable
exercises, and I think these hearings are a very important step
in that process. But the claim of power here over people all
over the world and 20 million people in the United States made
on the basis that the President is asserting seems to me to be
something that should not go unchallenged.
Senator Specter. Well, I thank you. I believe it is
enormously helpful to have--I am sorry I didn't get a chance to
ask Professor Silliman or Ms. Martin or Professor Katyal a
question, but it is very helpful to have this kind of mature
thinking and questioning, and to come to a conclusion which
accommodates security and constitutional rights.
Thank you.
Chairman Leahy. Thank you, Senator Specter.
I think as a practical matter, the question of who advises
whom is going to be asked next week. The Attorney General is
going to be before this Committee, and I believe the Secretary
of Defense is going to be before the Armed Services Committee,
and I am sure that they will have the same story. Otherwise, it
gets interesting. But I am sure they will.
General Barr, Professor Heymann, General Bell, Professor
Silliman, Professor Martin and Professor Katyal, thank you very
much. I agree with what has been said here on both sides of the
aisle. Your presence here, all of you, has been extremely
helpful. I know you have been here a long, long time, and I do
want to add please feel free to add to your transcript. You may
get additional questions. This has been very helpful, on what
is probably the most contentious issue presently before the
Congress. So thank you all very much.
We stand adjourned.
[Whereupon, at 1:32 p.m., the Committee was adjourned.]
DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE
DEFENDING AGAINST TERRORISM
----------
TUESDAY, DECEMBER 4, 2001 (MORNING SESSION)
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 10:08 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Charles
Schumer, presiding.
Present: Senators Schumer, Feinstein, Feingold, Durbin,
Hatch, Specter, Kyl, and Sessions.
OPENING STATEMENT OF HON. CHARLES SCHUMER, A U.S. SENATOR FROM
THE STATE OF NEW YORK
Senator Schumer. The hearing will come to order. I will
make and then Senator Sessions will make brief opening
statements. There won't be any others since Senator Leahy and
Senator Hatch are not coming, and we will then get right to the
witnesses.
Before I begin, I want to thank Senator Leahy for helping
us schedule this hearing. Tomorrow, as you know--or Thursday,
rather, Attorney General Ashcroft will be here. There are so
many questions to ask him, and there have been so many
questions asked on this issue of military tribunals that
Senator Leahy and I both thought it was a good idea to have a
sort of warm-up panel, almost, to flesh out some of those
questions before we hear from Attorney General Ashcroft. And so
I want to thank Senator Leahy for helping us schedule this
hearing this morning.
On September 11th, our world changed dramatically, and our
focus and our priorities changed along with it. We went from a
country of peace whose most pressing concern was a slipping
economy to a Nation at war with a new kind of enemy. In this
war, we are battling terrorists instead of nations. In this
war, some of our enemies are already here plotting against us
in our towns and cities and on our own American soil. The FBI
has already captured some suspects who the Justice Department
believes were involved in the terrorist plot of September 11th.
There are also those prisoners of war who we have captured
and will capture in Afghanistan and other countries who will
receive a trial of some sort. It is clear we need to try those
suspects in a forum that achieves two primary goals--two goals,
I might add, that may not conflict. First, the Government must
have the power to use even the most sensitive classified
evidence against these suspects without compromising national
security in any way, shape, or form. In addition, those who
commit acts of war against the United States, particularly
those who have no color of citizenship, don't deserve the same
panoply of due process rights that American citizens receive.
Should Osama bin Laden be captured alive--and I imagine most
Americans hope he won't be captured alive. But if he is, it is
ludicrous to suggest he should be tried in a Federal court on
Center Street in Lower Manhattan.
Nevertheless, the second priority is to ensure that our
proceedings, wherever they are held, respect our Nation's great
tradition of due process. No one wants trials that are ad hoc
or regarded as unfair, so we need established and fair
procedures.
We all want and we all must have trials that both protect
our national security interests and at the same time respect
our Nation's great tradition of due process. I believe we can,
and the question is how we get those two goals to co-exist.
The administration has proposed the use of secret military
tribunals as part of the solution. Secret military tribunals
constitute a significant departure from our normal legal
system. I believe strongly--and many of my colleagues on both
sides of the aisle agree--that any departure this significant
should be vetted by Congress. That is what we are doing here
today.
Congressional involvement is essential for a number of
reasons. First, it respects our tradition of checks and
balances. Second, it offers an opportunity to discuss how to
meet the two goals of safeguarding national security and
ensuring basic rights. That discussion will not only produce a
better final product, but it will give the final product more
legitimacy in the eyes of the American people and of our
friends abroad.
I think that is the lesson we learned from the anti-
terrorism bill. The Justice Department sent up a list of anti-
terrorism proposals that some criticized as going too far.
Chairman Leahy offered a set of proposals that some thought
didn't go far enough, and there were some points, for instance,
many of us, myself included, agreed with the Justice Department
and others where we agreed with Senator Leahy. We ended up with
a bill, in my judgment, that was more balanced, more fair, and
more effective than either of the first proposals by either
side, and that is because this committee was involved, not in a
dilatory way, not in a partisan way, but simply in a way to
come to the best product. And the final product was better
public policy. That is what I hope we can work towards with
this issue as well.
The President is clearly right in saying that some of the
terrorism trials will require a forum outside our regular
Federal courts. And the administration is also correct in
saying that some of the terrorist suspects we capture,
especially an American citizen who commits an act of terrorism
in this war, could be tried in our regular Federal courts with
certain processes to guard secrecy.
So we agree that trying at least some terrorists will
require a new type of forum, and for others, particularly for
American citizens, we may be able to use our preexisting
courts, although we might need new procedures to protect
national security. There is that much of a consensus.
But when we use a new type of forum or when we use new
procedures in a traditional forum, we need to figure out how
such a process should work. That means answering the following
types of questions:
Should traditional Article III judges preside, or should we
bring in special magistrates? What standards of evidence are
most appropriate? What burdens of proof should be used? Should
a conviction require the decisions of a unanimous jury? How do
we ensure that defendants receive effective assistance of
counsel? Is there a right to appeal? If so, how should the
appeals process work?
These are just some of the questions we hope to begin to
answer today.
It is also interesting to note that the proposed answers to
these questions don't fall along the typical liberal and
conservative lines. There are some on the right, such as
William Safire and the Cato Institute, who oppose military
commissions. There are some on the left, including some of the
witnesses here today, who support military commissions. It just
shows how complicated these issues really are.
To answer these questions, we have brought a distinguished
panel of professors, experts, and practitioners who I will
introduce after Senators Hatch and Sessions make their opening
statements.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
it. I want to thank you for convening this hearing to discuss
military commissions. This issue has generated a great deal of
attention, and I hope this hearing will enlighten the Congress
and the public again about the difference between the real
issues and the alarmist rhetoric that has been swirling around
Capitol Hill in the past few weeks.
Now, I hope the participants in this hearing will keep in
mind three basic facts about the President's Order. First, the
Order is very narrow. The only people it allows to be tried by
military commissions are non-citizens specifically determined
by the President to be members of Al Qaeda, supporters of Al
Qaeda, or people engaged in other international terrorist
networks. Secondly, the Order is a military command. It
instructs the Secretary of Defense, not the Attorney General,
to develop rules and procedures for conducting fair trials for
those whom the President designates. And, third, the Order has
not been utilized; as of today, the President has not
determined that anyone will be tried by military commission,
and the Secretary of Defense is still working on the rules and
procedures. And the only secrecy that I can see that is
involved here with regard to military tribunals is the
protection of national security matters. And I believe that is
probably the way this is going to wind up.
These four points are essential to a useful discussion here
today because they explain the two different avenues of
questioning that have emerged. Our primary interest here is
examining the legal and constitutional question as to whether
the Order, by itself, is proper and allowed. I think the answer
to that is yes, and I will explain more about that in just a
minute.
President Bush has made it abundantly clear that he regards
the option of military commissions as a tool to be used only
with the utmost discretion. After all, the President not only
retained exclusive authority to determine who will be subject
to trial by military commission--as opposed to delegating this
authority--but also constrained himself by limiting the people
he can designate essentially to non-citizen international
terrorists. This is unlike the use of military commissions
after World War II. The 1945 Order establishing military
commissions for the trial of war crimes in the Pacific theater
came from the pen of General Douglas MacArthur--not the
President--and it stated that military commissions had
jurisdiction over ``all of Japan and other areas occupied by
the armed forces commanded by the Commander-in-Chief, United
States Army, Pacific.'' It delegated the decision of whom to
try to ``the convening authority'' rather than the President.
In contrast, President Bush's Order has a very narrow scope,
and it ensures that decisions will be made at the very highest
level of our Government. I am very much reassured by these
features of the Order. And so are the American public, seven
out of ten of whom believe that the Government is doing enough
to protect the civil rights of suspected terrorists.
I do not mean to suggest that congressional oversight is
inappropriate when the public has thought about, and accepted,
an administration plan. I am strongly in favor of congressional
oversight. But we should remember that the purpose of oversight
is to make sure the administration is doing its job. At some
point, too many partisan hearings and too much hysteria only
make it more difficult for the administration to do its real
job. In the Judiciary Committee alone, we are holding four
hearings in 8 days. And these are multiple hearings on the same
subjects. We talked about military commissions last week, we
are talking about them today, and we will talk about them again
with the Attorney General on Thursday.
Frankly, I think this committee would better serve the
public by looking for ways to help, instead of distracting the
administration, which has an enormous task on its hands and is
doing a superb job under very difficult circumstances and
conditions.
One obvious way we could help is to confirm the nominees
languishing in this committee for important jobs, including
judgeships, positions at the Department of Justice, and the
Office of National Drug Control Policy. As the Washington
Post--again, I might mention, not known for its membership in
the vast right-wing conspiracy--editorialized last week,
``[f]ailing to hold [judicial nomination hearings] in a timely
fashion damages the judiciary, disrespects the President's
power to name judges and is grossly unfair to often well-
qualified nominees.''
Now, in light of the nominations backlog that we have, one
is hard-pressed to understand the wisdom of holding hearings
every other work day on whether Osama bin Laden should be able
to avail himself of the intricacies of the hearsay exception in
the event that he survives the bombs headed in his direction.
Am I the only one who finds it ironic that, while no one
questions the President's authority to instruct the military to
drop bombs on his hideouts, there is a little group of
outspoken critics who want to quibble over which set of
evidentiary rules the Secretary of Defense should apply in bin
Laden's trial? And this is in a country where we have always
been decent in protecting the rights of the accused, whether by
military tribunal or not.
To those who reflexively oppose the military tribunals, I
ask, do we really want to litigate in a criminal trial whether
the soldiers who apprehend bin Laden should have obtained a
search warrant before entering his cave? Now, that is meant to
be humorous. Or whether he understood--
Senator Schumer. We are all laughing.
[Laughter.]
Senator Hatch. You should have laughed a little quicker
than you did.
Or whether he understood his Miranda rights? Or whether he
is not guilty by reason of insanity? He certainly is not living
his religion, we will put it that way.
I know that some are less worried about bin Laden and more
concerned about the reaction that our use of military
commissions would engender in Europe and elsewhere around the
world. Some have speculated that Spain and other countries
would refuse to extradite suspects to the United States. To my
knowledge, no country has made such a refusal yet. And any such
refusal, if made without reviewing the actual rules and
regulations that will govern our military commissions, would be
based on speculation and distrust rather than facts. When the
United States has criticized other countries for unfair
military courts, it was because they were unfair, not because
they were military courts.
Now, I want to turn to the constitutionality question that
I mentioned a minute ago. Despite the articulate explanation
this committee received last week from Assistant Attorney
General Chertoff, some of my colleagues still question whether
military tribunals are, in fact, permitted by the Constitution.
The fact is that the Supreme Court has repeatedly upheld the
constitutionality of using military commissions to prosecute
individuals charged with crimes under the law of war. As the
Supreme Court has explained, ``[s]ince our Nation's earliest
days, such commissions have been constitutionally recognized
agencies for meeting many urgent governmental responsibilities
related to war.''
Furthermore, contrary to recent suggestion, military
tribunals can be--and have been--established without further
congressional authorization. Because the President's power to
establish military commissions arises out of his constitutional
authority as Commander-in-Chief, an act of Congress is
unnecessary. Presidents have used this authority to establish
military commissions throughout our Nation's history, from
George Washington during the Revolutionary War to President
Roosevelt during World War II. Congress, for its part, has
repeatedly and explicitly affirmed and ratified this use of
military commissions. Article 21 of our Code of Military
Justice, codified at section 821 of Title 10 of the United
States Code, expressly acknowledges that military commissions
have jurisdiction over offenses under the law of war.
Now, I would like to also add--and I think it may be
important to do so--that I think underlying part of the reason
why the President wants to have military commissions in the
case of Al Qaeda terrorists in particular--and who knows
whether he will decide to establish them or not, but he has the
right to, in my opinion. But one reason that he wants to do
that is to protect national security interests. Who wants to
serve on a jury trying Osama bin Laden or Al Qaeda terrorists?
Or who wants to be in the hotel that is housing those jurors if
they are sequestered? Or who is going to protect those jurors'
families? Or who is going to protect the community in which
those trials are being held?
We shouldn't pussyfoot around here. There are some things
that literally are to be considered. Others have said, well,
the World Trade Center trials were held, and they went off just
perfectly. Yes. Well, an awful lot of the architecture of the
World Trade Center buildings was disclosed in those trials, as
I understand, giving the Al Qaeda people even more ability to
destroy those towers and to devastate our whole country, and
the world, as a matter of fact.
And who knows what else could be done by people who don't
abide by even the rules of war, who don't abide by morality and
decency, who distort their own religious principles to oppress
their own people, and who have no qualms about using weapons of
mass destruction if they can get their hands on them?
So I can understand why the President feels the way he
does. I can understand why so many people in this country feel
the way they do under these circumstances.
In closing, Mr. Chairman, I want to thank you again for
convening this hearing. I have criticized having so many of
them, but I also know that you have, if anybody in this body
has the right, to call a hearing like this, you certainly do.
Coming from New York City and representing your State, you have
done a magnificent job in doing it. So I just want you to know
that this hearing is an important hearing. I think you have a
right to call it. I just don't think we need all of them, and I
don't think we need to take all the time that we do. But this
is an important hearing for the truth about these issues to be
made public, and I look forward to hearing from our witnesses.
And I know there will be some who will disagree with some of
the things that I have said, and I respect that and will
respect them. But this is a very trying time for our country,
very, very difficult time for the President and those who are
working with him. And we need to get behind him, and we need to
quit worrying so much about whether or not this is going to be
fair since I can't imagine any military tribunal, the same
similar tribunals in a sense that try our own young men and
women when they commit crimes, I can't imagine them being
unfair. And I have to say that since our young men and women
are subjected to these rules, I find it a little bit difficult
to see why we should argue why Osama bin Laden deserves more
constitutional protection than they do.
Thank you, Mr. Chairman.
Senator Schumer. Thank you, Mr. Hatch.
Just one thing. Let the record show this is the first
hearing that is being held on this subject. There was one last
week on all of the subjects. The one Thursday is on all. There
has been none on this subject, and I think if you are right,
then you would welcome such a hearing because all the questions
will come out. The witnesses are chosen down the middle. You
chose as many as we did. And sunlight is great in producing
good product. And no one is trying to delay it. No one is
trying to impede the President's role. I am of an open mind on
this issue, as you know. And you comparing these to courts-
martials, finding out exactly what the administration has in
mind, fleshing out the differences, that is our job. It is not
our job to impede. It is our job to make our country work best.
Senator Hatch. I agree.
Senator Schumer. And that is what we are doing here. And I
think anybody who thinks we shouldn't have one hearing devoted
to this subject, an important subject, doesn't understand the
process. I don't think you are saying that. You welcome this
hearing.
Senator Hatch. No, no. I welcome the hearing.
Senator Schumer. But that is our job.
I would like to call on my ranking member, a gentleman I
have worked very closely with, and it has always been a
pleasure to work with Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Chairman Schumer. As Senator
Hatch noted, I know that you feel deeply about civil liberties,
and I know you feel deeply about the terrorists who attacked
your city, and no one feels more personally the pain of the
families than you, and you have done an outstanding job--
Senator Schumer. Thank you. I appreciate it.
Senator Sessions. --in defending the interests of New York
in so many ways, some of which are made public, some of which
are not. So I think it is fine and good to have hearing like
this to discuss these issues, particularly in light of some of
the extreme, I have to say, charges that have been made about
the procedures as being unprecedented and secret and unfair and
unjust and unconstitutional and contrary to law. So I think
that is what we ought to do today. Let's put it out on the
table. To the extent to which someone can improve what goes
forward, I would be pleased to hear it.
I was also pleased that Secretary Rumsfeld on ``Meet the
Press'' Sunday said he has not completed his view of how the
procedures ought to be handled, and he welcomed debate and
input into how to make them better. I am certain he has no
interest in convicting someone of a war crime that is not
guilty of a war crime, and I would say, as a former prosecutor
and also as a former JAG officer for a few years in the Army
Reserve, that our military justice system is a good system, and
the officers and enlisted people who participate in courts-
martials and other tribunals and commissions in the military
are men and women of integrity. They are men and women of
personal discipline. They follow rules and law as given to
them. And F. Lee Bailey, I believe, as I recall, has repeatedly
praised military justice as being fair justice. And somehow to
suggest because a trial is going to be tried by military
officers or military people that this is inherently unfair is
not so.
I think the proof is in the pudding. The proof is whether
or not justice is occurring and does occur. And it is important
for this great Nation, the beacon of liberty and the symbol of
law in the world, the rule of law, that we conduct these
hearings fairly, and I am confident that that will occur.
I will offer my full statement into the record. It deals
with many of the details of the issues.
Senator Schumer. Without objection.
Senator Sessions. And I know Senator Hatch has made a
number of the points that I would have made had he not been
here, most eloquently also. But let me just mention what
Justice Jackson, who was the leader at the Nuremberg trials,
said. And I think he comes right down to this point. And let me
also note, I am not aware throughout history that people who
have been involved in violations of the rules of war or
combatants have been tried in civil courts normally. I am just
not aware that that has ever occurred. I am not sure that there
has ever been an incident where an illegal combatant in a
wartime situation has been tried in civilian courts. Perhaps it
is true, but normally not. But this is what Justice Jackson
said at the Nuremberg trials, which was not a normal civil
trial, for the Nazi war criminals. He said, ``We must never
forget that the record on which we judge these defendants is
the record on which history will judge us tomorrow. To pass
these defendants a poisoned chalice is to put it to our lips as
well. We must summon such detachment and intellectual integrity
to our task that this Trial will commend itself to posterity as
fulfilling humanity's aspirations to do justice.''
And just as history judged the Allied powers by how they
conducted the Nuremberg trial, so history will judge America by
how we conduct the trials of these terrorists. We do not want
history to conclude that America, through these military
commissions, rendered victor's justice, but real justice. And,
you know, I think that MacArthur, he just did these trials with
very little supervision. But because he did them right, we have
a new relationship and better relationship with Japan today.
Some of those things simply had to be done. Eisenhower did
commissions in Europe, and it has strengthened our
relationship, the way they were conducted. And I believe when
this is concluded, likewise our relationships with the people
in the Middle East, their respect for American justice will be
enhanced. But I must say that we do not need to bring them all
back to the United States to make our courtrooms a target for
all those hatreds and venom that may be still out there. I
think that would be unwise. And I would also note that you
can't try these cases consistently even with certain rules that
allow the protection of certain secrets without the terrorists'
being able to learn a great deal more about how our systems of
intelligence and surveillance and electronics work. And I think
that would be dangerous, too.
Thank you, Mr. Chairman. I look forward to this excellent
panel of witnesses.
[The prepared statement of Senator Sessions follows:]
Statement of Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama
I commend Senator Schumer for holding this hearing to examine the
use of military commissions to try terrorists who commit war crimes
against American citizens.
It is a good and healthy thing to debate and discuss every aspect
of these procedures. I welcome that. So has Secretary of Defense
Rumsfeld. I would be surprised if we do not find some suggestions to
improve the system. But, I must say there has been a host of changes,
some very extreme, that are justified by the Constitution, statute,
history or reason.
The last example of this tactic was the USA Patriot Act--the Anti-
Terrorism Bill--that was vilified by political interest groups as
``shredding the Constitution,'' ``stripping our privacy,'' etc. When
the bill was reviewed by more serious minds, however, we found that the
bill's provisions did not violate the Constitution, and, after
adjustment by Congress, the bill passed with an overwhelming vote.
Similarly, today, with respect to the President's order providing
for the use of military commissions, we are hearing the ACLU state that
the commissions ``could easily be used against any one of some 20
million non-citizens within America.'' ACLU Urges Congress to Leash New
Military Tribunals, Reestablish Oversight (visited Dec. 3, 2001)
. In fact, the President's November
13th Military Order has a requirement in addition to non-
citizenship: that the non-citizen be a member of al Quaida or engaged
in or aiding someone engaged in international terrorism. Military Order
of November 13,20001, Sec. 2(a)(1)(i) and (ii). We can be sure that
only a very small fraction of the 20 million non-citizens in America is
engaged in international terrorism.
The People for the American Way charges that ``the attorney general
and his allies are acting in ways that threaten to circumvent [] checks
and balances, effectively amending our Constitution by executive
fiat.'' Statement of Ralph G. Neas, President of People for the
American Way, concerning the Senate Judiciary Committee's hearings on
civil liberties, (visited Dec. 3, 2001) . In fact, the President's Military Order
is directly consisted with the orders of prior presidents, Congress's
statutes providing for military commissions, and the Supreme Court's
cases approving the use of military commissions by the President and
his military subordinates.
We have heard claims that the President's Order will result in
``secret trials.'' Written Testimony of Kate Martin, Hearing Before the
Committee on the Judiciary: DOJ Oversight: Protecting Our Freedoms
While Defending Against Terrorism p.11. (Nov. 28, 2001). In fact, White
House Counsel Gonzales has explained that the trials will only be as
secret as the ``urgent needs of national security'' require. Alberto
Gonzales, Martial Justice, Full and Fair, New York Times, Nov. 30,
2001, at A27. We do not want judges and jurors to be under death
threats from terrorist groups like the judge in the 1998 embassy
bombing trial.
We have also heard people compare the President's Military Order to
the World War II internment of over 70,000 Japanese based on their
race--the Korematsu case. Written Testimony of Prof. Neal Katyul,
Hearings Before the Committee on the Judiciary, DOJ: Oversight
Protecting Our Freedoms While Defending Against Terrorism, p. 8. In
fact, unlike the World War II internment, the President's Military
Order expressly provides that persons detained thereunder will be
``treated humanely, without any adverse distinction based on race.''
Military Order of November 13, 2001 Sec. 3(b) (emphasis added).
Further, the military commissions will provide for what the internment
order did not--an individualized determination of whether an accused
committed a crime, in this case, an international war crime.
Finally, I have a press article railing that the President's
Military Order amounts to a seizure of ``dictatorial power,'' that it
provides for the use of ``military kangaroo courts,'' and that it is a
``Soviet-style abomination.'' William Safire, Seizing Dictatorial
Power, The New York Times, November 15, 2001, at A31. Military trials
are full and fair. Our service men and women are subject to them every
day. Indeed, F. Lee Bailey, famed criminal defense lawyer, has
consistently praised their fairness. It is a slap in the face to
America's military and its history of dispensing justice to call this
system a `kangaroo court.'
When seriously examining an issue of national, or in this case
international, importance, it is incumbent upon the Senate to separate
partisan rhetoric from legitimate substance. I commend Senator Schumer
for taking this approach.
With respect to military commissions, my personal experience as a
federal prosecutor and as an Army Reserve JAG officer taught me that
violation of federal criminal statutes are tried in Article III courts,
violation of the Uniform Code of Military Justice are tried before
courts martial, and violations of the laws of war are tried before
military tribunals, including military commissions. My experience has
also taught me that any court, civilian or military, must be fair and
adhere to the rule of law.
Our country has been attacked by ruthless terrorists who slipped
into this country, hijacked civilian airliners, and killed
approximately 4,000 of our civilian citizens without warning, without
trial, and without justice. They have declared a war against America
and everything that we stand for--liberty, justice, and the rule of
law. They have committed war crimes and thus voluntarily gave up the
protections that the law provides to civilian or to military servicemen
who follow the law of war.
On September 18, 2001, the Congress exercised its authority under
the War Powers Act to authorize President Bush to use all necessary
military force to defend the United States and our people. Joint
Resolution to Authorize the Use of United States Armed Forces Against
Those Responsible for Recent Attack Launched Against the Untied States,
Pub L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). On November 13,
2001, President Bush issued an order authorizing the trial of captured
terrorists for war crimes in military commissions. (1942).
It is against this background that we address the questions that
have been raised as to the legitimacy of the President's Military
Order. We should begin with Constitution and our history.
Constitution, Statute, and Supreme Court Precedent Authorize the
Use of Military Commissions--First, the President's Military Order is
based on sound legal authority that has been recognized by all three
branches of government. Article 2, section 2, Clause 1 of the
Constitution provides that the ``President shall be Commander and Chief
of the Army and Navy of the United States. . . .'' In In re Yamashita,
327 U.S. 1, 10 (1946), the Supreme Court held that the President's
commander in chief power includes the power to try war criminals by
military commission.
Article I, Sec. 8, cl. 10 of the Constitution confers upon Congress
the power ``To define and punish. . .Offences against the Law of
Nations,'' and the law of nations includes the law of war.
In exercising its constitutional power, Congress passed section 821
of Title 10 of the United States Code that states, in pertinent part:
``The provisions of this chapter conferring jurisdiction upon
courts-martial do not deprive military commissions. . .of concurrent
jurisdiction with respect to offenders or offenses that by statute or
by the law of war may be tried by military commissions. . . .''
(Emphases added)
President Roosevelt ordered the trial of eight Nazi saboteurs by
military commission 1942. Military Order of July 2, 1942. In Ex parte
Quirin, 317 U.S. U.S. 1 (1942), the Supreme Court approved President
Roosevelt's order. In In re Yamashita, 327 U.S. 1 (1946), the Supreme
Court approved the use of a military commission, ordered by General
MacArthur, to try a Japanese war criminal.
Thus, President Bush's order to try terrorists involved with
killing 4,000 innocent Americans is based on precedent from all three
branches of government: Legislative, Executive, and Judicial.
History--Second, American history is replete with examples of the
President, or our military commanders, using military commissions to
try those charged with offenses against the law of war. General George
Washington appointed a military tribunal to try Major Andre, a British
spy who was cooperating with Benedict Arnold. Ex parte Quirin, 327 U.S.
1, 31 n.9.
During the Mexican War of the 1840s, General Winfield Scott ordered
military commissions to try offenses against the law of war. Ex parte
Quirin, 327 U.S. 1, 31 n.9 (1942).
During the Civil War, Union Army General Order No. 100, provided
for the use of ``military commissions'' to try offenses outside the
rules of war. Ex parte Quirin, 317 U.S. 1, 31 n.9 (1942).
During World War II, President Roosevelt used a military commission
to try the eight Nazi saboteurs who surreptitiously slipped into this
country without military uniform and conspired to blow up government
and private property. Ex parte Quirin, 317 U.S. 1 (1942).
After World War II, President Truman agreed to use an International
Military Tribunal to try major Nazi war criminals at Nuremberg. TELFORD
TAYLOR, AN ANATOMY OF THE NUREMBERG TRIALS 73 (1992). Further, Generals
Eisenhower and MacArthur used military commissions to try hundreds of
war criminals in Europe and Asia. See Maximillian Koessler, American
War Crimes Trials in Europe, 39 Geo. L.J. 18 (1951).
President Bush's order to try the terrorists involved with killing
the 4,000 innocent Americans is consistent with these historic
precedents.
Constitution Does Not Require that Procedures be Set by Congress--
Third, the President may legally provide for the Department of Defense
to draft procedures for the Military Commissions. Congress has
expressly provided in section 836 of Title 10 of the United States Code
that ``[p]retrial, trial, and post-trial procedures, including modes of
proof, for cases arising under this chapter triable in. . .military
commissions. . .may be prescribed by the President. . .'' (Emphasis
added.)
Acting under similar authority, President Roosevelt ordered that
the Military Commission that would try the eight Nazi saboteurs would
set its own procedures. MILITARY ORDER OF JULY 2, 1942 (``The
Commission shall have power to and shall, as occasion requires, make
such rules for the conduct of the proceeding, consistent with the
powers of military commissions under the Articles or War, as it shall
deem necessary for a full and fair trial of the matters before it.'').
President Truman, through his representative Justice Jackson,
provided that the Allied prosecutors would submit, and the military
tribunal would approve, procedures for conducting the Nurembery trial.
See CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL ART. 14(E).
President Bush's order to try the terrorists who helped kill 4,000
innocent Americans provides for the issuance of further procedures by
the Department of Defense and is thus consistent with the traditional
deference that Congress has shown to past Presidents who ordered
military commissions.
Different Procedures for Military Commissions--Fourth, military
commissions and tribunals dealing with war crimes have traditionally
had different means of adopting procedures, different standards of
evidence, different voting requirements, and different appeal rights
than Article III courts by our servicemen.
The charter for the Nuremberg International Military Tribunal
provides that the prosectors would draft the procedures prior to trial
for the military tribunal's approval, that evidence would be admitted
if it had probative value, that a majority vote was sufficient in all
cases, and that there would be no appeals. CHARTER OF THE INTERNATIONAL
MILITARY TRIBUNAL ART 14(e) (procedures), 19 (evidence), 4(c) (vote),
and 26 (appeal).
Similarly, President Roosevelt's proclamation for the trial of the
eight Nazi saboteurs by military commission provided for the commission
to set its own procedures, for evidence to be admitted when it had
probative value to a reasonable man, for conviction by a two-third's
vote, and for no direct appeal to a higher court. Military Order of
July 2, 1942.
Consistent with these precedents for the admission of evidence with
probative value to a reasonable person, for conviction by a two-third's
vote, and for no direct appeal. Military Order of November 13, 2001
Sec. 4. Of course, terrorists tried in the United States will have
habeas corpus review in the federal courts. Ex parte Quirin. 317 U.S. 1
(1942). Before we criticize the Department of Defense's procedures, we
should wait until all the procedures are drafted and we have had an
opportunity to review them.
Constitution Does Not Require Consultation--Finally, while Article
II, Section 2, Clause 2 of the Constitution indicates that the
President should obtain the Advice and Consent of the Senate in
appointing federal judges, there is no similar consultation requirement
for the issuance of military orders. Article II, Section 2, Clause 1
provides that the President is the Commander in Chief. As Commander in
Chief, several Presidents have issued orders and authorized agreements
to try war criminals by military tribunal or commission without
adhering to a consultation with Congress requirement.
In Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court upheld the
constitutionality of the military commission without any reference to a
consultation with Congress requirement. The Court held that existing
statutes--the pre-Uniform Code of Military Justice statutes--recognized
military commissions as the proper forum to try persons accused of war
crimes. Id. at 29.
Similarly, there was no formal question raised that President
Truman should have consulted with Congress before agreeing with the
other Allied Powers to use an International Military Tribunal to try
the major Nazi war criminals. TELFORD TAYLOR, THE ANATOMY OF THE
NUREMBERG TRIALS 73 (1992). And the President's subordinates, Generals
Eisenhower and MacArthur, issued orders allowing literally hundreds of
military commissions to try lesser war criminals without adhering to
any consultation with Congress requirement. Maximillian Koessler,
American War Crimes Trials in Europe, 39 Goe. L.J. 18 (1951). In In re
Yamashita, 327 U.S. 1 (1946), the Supreme Court upheld the use of
Military Commissions to try war criminals, again with no mention of a
consultation requirement for the President or the Generals with
Congress.
The same constitutional and statutory authorizations for the
President's use of military commissions. remain in the law today.
Article II, Section 2, Clause 2; 10 U.S.C. Sec. 821. No additional
enactments or resolutions of Congress are required. Accordingly, while
a formal consultation by President Bush with Congress would have been
politically expedient, it was not constitutionally required.
Nonetheless, I am pleased to see this hearing, and I hope to see
increased consultation and cooperation with the Congress in the future.
Conclusion
In sum, the President had constitutional, congressional, and
historical authority to issue the November 13th Military
Order calling for trial of the terrorists who helped to kill 4,000
innocent Americans by military commissions. Instead of listening to the
knee-jerk reaction of political interest groups attacking the
Administration, we should await the issuance of the procedures by the
Department of Defense. We should then review the procedures and provide
constructive criticism.
I was very pleased Sunday to hear Secretary of Defense Rumsfeld
welcome comment and debate on this subject as the DOD drafts its
procedures. I am sure the Department of Defense will keep in mind that
the procedures by which the accused terrorists are to be judged must be
fair in fact and in appearance. As Justice Jackson said in his opening
statement at the Nuremberg trial: ``We must never forget that the
record on which we judge these defendants is the record on which
history will judge us tomorrow. To pass these defendants a poisoned
chalice is to put it to our lips as well. We must summon such
detachment and intellectual integrity to our task that this Trial will
commend itself to posterity as fulfilling humanity's aspirations to do
justice.'' TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 168
(1992).
Just as history judged the Allied powers by how they conducted the
Nuremberg trial, so history will judge America by how we conduct the
trials of the terrorists. We do not want history to conclude that
America, through these military commissions, rendered ``Victor's
Justice,'' but real justice. We have done it before, and we can do it
again.
While I will defer to the President until the procedures for the
commissions are published by the Department of Defense, I thank the
Chairman for holding this hearing, and I look forward to hearing from
our excellent witnesses.
Senator Schumer. Thank you, Jeff. And, again, as I stated,
I agree with you. I don't think anybody--some may, but I don't
think any--most everybody disagrees that there is a need for
secrecy and having a regular civil trial, criminal trial
doesn't make sense here. We are just trying to figure out where
the appropriate balance ought to be. What the President has
proposed, first, hasn't been fleshed out. Second, unlike what
Senator Hatch said, it is not a courts-martial. There are more
procedures in a courts-martial. We may come to the conclusion
on this committee that it ought to be the same as a courts-
martial.
Senator Sessions. But a courts-martial doesn't give all the
protections that a civil trial that we think protect
defendants. But we don't think it is unjust.
Senator Schumer. That is correct.
Senator Sessions. And I would note Mr. Gonzalez, the White
House counsel, had written an op ed in the New York Times in
which he did make a strong statement that these commissions are
not--these commission trials are not secret. The President's
Order authorizes the Secretary to close the proceedings to
protect classified information. It does not require any trial,
or even portions, to be conducted in secret. And we should be
as open as possible, he said.
Senator Schumer. And we have dealt with that under the CIPA
law in the past as well, so we have good precedents here. We
have got to figure out what to do. I think a lot of the
problems here have occurred because the initial statements were
so vague and so broad, and we are hoping to flesh those out.
We were just going to have the ranking members make opening
statements, but I have been told that Mr. Feingold wants to
make a brief statement. I know he feels very strongly about
this, and so with the permission of the committee, I would call
on Senator Feingold for a brief opening statement.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Mr. Chairman, I certainly don't want to
delay things, and I will only speak for a minute. But I would
like to welcome all the witnesses here today, and I certainly
want to thank the chairman. This is an extremely important
hearing to be held, in particular because I am concerned that
the President has not adequately consulted with Congress on the
issue of military commissions. I am concerned that he has not,
in my reading, demonstrated that the civilian courts are
inadequate to conduct these trials, particularly when
terrorists have previously been tried in civilian courts, and
I, like the chairman--and I want this clear--do not oppose the
concept of tribunals categorically. In fact, I believe the use
of an international court at Nuremberg was effective in
bringing Nazi war criminals to justice in a fair manner, but
also while conferring legitimacy to the process. But I believe
that military tribunals are proceedings our Nation should
pursue only after careful thought and consideration.
For example, if people want to talk about the issue of the
first World Trade Center trials, that is a fair example to
discuss. When the ranking member, Senator Hatch, suggests that
there was secret information about the structure of the
building and information about the building, the question isn't
simply do you take a leap then and assume that you have to use
a military tribunal. The first question should be: Could that
information have been adequately protected in a regular court
through our laws, for example, under the Classified Information
Procedures Act and other bills? That should be the first
question.
I want to say that I am certainly not happy about the fact
that that information came out in that trial. That was
obviously a mistake. But that does not allow a leap to assuming
that you have to go wholesale to a military tribunal approach.
It means you have to use the protections that are provided
under current law.
If it turns out that the evidence suggests that that is not
adequate, so be it. Then I would join with the chairman and
talk about the need to do something else. But I think it is far
too easy to suggest that simply because a mistake was made
there it can't be addressed under our current system.
In that context, I just want to briefly express my alarm at
the failure of the Department of Defense to appear before the
committee today. The Department of Defense was invited to
appear before us today, but I understand that the Department of
Defense declined to appear. I would note that this committee
has already heard from the Department of Justice on the issue
of military commissions, and today we will hear from the
Department of State. But we have yet to hear from the
Department of Defense. And that is the Department which has the
primary authority under the President's Order for the creation
and administration of the commissions.
I am very concerned by this lack of meaningful
consultation, and I do hope that representatives of the
Department of Defense will appear before us in the future to
discuss these important issues.
I thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator Feingold.
Senator Feinstein. Could I make a brief statement?
Senator Schumer. Certainly. Senator Feinstein, who has been
an active and diligent member of this committee.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, and
I, too, thank you for these hearings. I think they are
extraordinarily important that if we do go into the military
tribunal, we go in with an understanding of exactly what is
going to take place.
I for one think the goal of the tribunal is a good one:
swift, fair, full justice, without revealing national secrets
or making a courthouse into a target for terror.
To read some of the critics, it would appear that these
tribunals will not be limited to the most visible or heinous
terrorists. Instead, even a long-time resident alien in the
United States could suddenly be thrust before a secret tribunal
of military officers, and with no opportunity to appeal, the
individual could be sentenced to death by a mere preponderance
of the evidence and by just two-thirds of the tribunal members
present at the time. This would indeed be of deep concern and
deeply troubling. I don't know whether this is accurate or not.
I hope the witness will clarify it. But this is important to
flesh out, I think, at this hearing.
Just to be very brief, Mr. Chairman, I hope that the Bush
administration will work with the committee and the full
Congress as it moves forward in this analysis. I, too, have
read Judge Gonzales' article. I, too, have read Professor
Tribe's article. I think both present some very interesting
views which we need to press a little further on to be sure
that we know the confines and the context in which these
tribunals will be held.
Senator Schumer. Well, thank you, Senator Feinstein. I
thank all the members here. You can see the broad range of
views but, more importantly, the many questions. And just,
again, when I heard Senator Hatch's statement, I thought he was
saying to even ask any questions about this is wrong. I was
glad at the end he backed off that because I think that would
be totally inappropriate. And that is what we are here to do.
There are so many questions, such as the Senator from
California has answered, who these apply to, what the rules
are, et cetera. And I think most of us believe that there is a
need for some kind of tribunal. We are beginning the
questioning process and the fleshing-out process right now, and
I appreciate that.
I want to introduce our first witness. The Honorable
Pierre-Richard Prosper serves as the Ambassador-at-Large for
War Crimes Issues at the Department of State. He received his
B.A. from Boston College, his J.D. from Pepperdine University
School of Law. Prior to his appointment, Ambassador Prosper
served between 1999 and 2001 as special counsel and policy
adviser in the Office of War Crimes Issues. He was detailed to
the State Department from the Justice Department, where he
served as special assistant to the Assistant Attorney General
for the Criminal Division. From 1996 to 1998, Ambassador
Prosper served as war crimes prosecutor for the United Nations
International Criminal Tribunal for Rwanda. Before that he
prosecuted cases as an Assistant U.S. Attorney in California.
Before you begin, Ambassador Prosper, I want to let you
know, and everyone else here, that we did invite, as Senator
Feingold mentioned, the Department of Defense to send
representatives to this hearing. We thought it was important to
have them here since they have been charged with drafting the
regulations for the commissions. Many of the details and
questions we have can be answered by them, and, unfortunately,
the Defense Department refused to send a witness. I think that
doesn't serve the purposes they seek, which is in gaining--in
coming to the right conclusion because they are debating it
right now, and I hope that they will in the future be more
willing to address this committee and this subcommittee.
With that, Ambassador Prosper, that does not say we are not
grateful and honored that you are here, in addition, and thank
you for being here. Your entire statement will be read into the
record, and you may proceed as you wish.
STATEMENT OF HON. PIERRE-RICHARD PROSPER, AMBASSADOR-AT-LARGE
FOR WAR CRIMES ISSUES, DEPARTMENT OF STATE, WASHINGTON, D.C.
Ambassador Prosper. Thank you. Mr. Chairman, members of the
committee, I thank you for this opportunity to speak with you
regarding the Military Order issued by the President on
November 13th in response to the tragic events of September
11th. The events remind us that we must vigorously pursue
justice to ensure that the acts not go unpunished.
Mr. Chairman, members of the committee, I come before you
as Ambassador-at-Large for War Crimes Issues and also as a
former prosecutor. Prior to my appointment to this post, I
spent 10 years in the trenches as a line prosecutor. As a
deputy district attorney in Los Angeles, I prosecuted hundreds
of cases and tried dozens of murder cases and multiple murder
cases as a member of the Hard Core Gang Division. As an
Assistant United States Attorney, I prosecuted and investigated
sophisticated international drug cartels trafficking tons of
cocaine into the streets of Los Angeles. And as a lead
prosecutor for the United Nations International Criminal
Tribunal for Rwanda, I successfully prosecuted, in a 14-month
trial, the first-ever case of genocide before an international
tribunal under the 1948 Genocide Convention.
With this experience, I recognize, understand, and truly
believe that there are different approaches that can be used to
achieve justice. I recognize that different procedures are
allowed and that different procedures are appropriate. No one
approach is exclusive, and the approaches need not be identical
for justice to be administered fairly. But in all approaches,
what is important is that the procedures ensure fundamental
fairness. And that is what the President's Order calls for.
After the tragic events of September 11th, we as a Nation
were forced to reexamine our traditional notions of security,
our conceptions of our attackers, and our approaches to
bringing to justice the perpetrators. The conventional view of
terrorism as isolated acts of egregious violence did not fit.
The atrocities committed by the Al Qaeda organization at the
World Trade Center in New York, at the headquarters of our
Department of Defense, and in Pennsylvania were of the kind
that defied the imagination and shocked the conscience.
These atrocities are just as premeditated, just as
systematic, just as evil as the violations of international
humanitarian law that I have seen around the world. As the
President's Order recognizes, we must call these attacks by
their rightful name: war crimes.
President Bush recognized that the threat we currently face
is as grave as any we have confronted. While combating these
war crimes committed against U.S. citizens, it is important
that the President be able to act in the interest of this
country to protect the security of our citizens and ensure that
justice is achieved. He has repeatedly promised to use all the
military, diplomatic, economic, and legal options available to
ensure the safety of the American people and our democratic way
of life. The President should have a full range of options
available for addressing these wrongs. The Military Order adds
additional arrows to the President's quiver.
Should we be in a position to prosecute bin Laden, his top
henchmen, and other members of Al Qaeda, this option should be
available to protect our civilian justice system against this
organization of terror. We should all ask ourselves whether we
want to bring into the domestic system dozens of persons who
have proved they are willing to murder thousands of Americans
at a time and die in the process. We all must think about the
safety of the jurors, who may have to be sequestered from their
families for up to a year or more while a complex trial
unfolds. We all ought to remember the employees in the civilian
courts, such as the bailiff, the court clerk, and the court
reporter, and ask ourselves whether this was the type of
service they signed up for--to be potential victims of terror
while justice is pursued. And we all must think about the
injured city of New York and the security implications that
would be associated with a trial of the Al Qaeda organization.
With this security threat in mind, we should consider the
option of military commissions from two perspectives. First,
the President's Military Order is consistent with the precepts
of international law. Second, the military commissions are the
customary legal option for bringing to justice perpetrators of
war crimes during a time of conflict.
The Military Order's conclusion that we are in a state of
armed conflict deserves some comment. Because military
commissions are empowered to try violations of the law of war,
their jurisdiction is dependent upon the existence of an armed
conflict, which we have.
It is clear that this series of attacks against the United
States is more than isolated and sporadic acts of violence or
other acts of a similar nature. Rather, a foreign, private
terrorist network, with the essential harboring and other
support of the Taliban-led Afghanistan, has issued a
declaration of war against the United States. It has organized,
campaigned, trained, and over the course of years repeatedly
carried out cowardly and indiscriminate attacks.
Tracing the criminal history of this organization further
confirms that we are in a state of armed conflict. A decade's
worth of hostile statements by bin Laden over and over and over
again state that he is at war with the United States. He has
instructed his followers to kill each and every American. We
should also consider the intensity of the hostilities and the
systematic nature of the assaults. Consider the fact that Al
Qaeda is accused of bombing the World Trade Center in 1993 and
attacking U.S. military service personnel serving in Somalia in
that same year. Consider that bin Laden and Al Qaeda are
accused of attacking and bombing the embassies in Nairobi,
Kenya, and Dar es Salaam, Tanzania. Remember that Al Qaeda is
accused of perpetrating last year's bombing of the U.S.S. Cole.
And, of course, added to this history are the horrifying and
unprovoked air assaults on the Twin Towers in New York, the
Pentagon, and the airplane tragedy in Pennsylvania.
It is clear that the conduct of Al Qaeda cannot be
considered ordinary domestic crimes, and the perpetrators are
not common criminals. One needs to look no further than the
international reaction to September 11th to see that it was
perceived as an armed attack against the United States. NATO's
North Atlantic Council declared that the attack was directed
from abroad and invoked Article V of the Washington Treaty,
which states that an armed attack against one or more of the
Allies in Europe or North America shall be considered an attack
against them all. The Organization of American States,
Australia, and New Zealand activated similar mutual defense
treaties. The UN Security Council in a series of resolutions
recognized our inherent right to self-defense and labeled
terrorism as ``one of the most serious treats to international
peace and security.'' And this Congress, in a joint resolution,
authorized the use of all necessary and appropriate force in
order to prevent any future acts of international terrorism.
Mr. Chairman, members of the committee, we are at war, an
unconventional war conducted by unconventional means by an
unprecedented aggressor. Under long-established legal
principles, the right to conduct armed conflict, lawful
belligerency, is reserves only to states and recognized armed
forces or groups under responsible command. Private persons
lacking the basic indicia of organization and the ability or
willingness to conduct operations in accordance with the laws
of armed conflict have no right to wage warfare against a
state. In waging war, the participants become unlawful
combatants.
Because the members of Al Qaeda do not meet the criteria to
be lawful combatants under the law of war, they have no right
to engage in armed conflict and are unlawful combatants.
Because their intentional targeting and killing of civilians in
time of international armed conflict amount to war crimes,
military commissions are available for adjudicating their
specific violations of the laws of war. As the U.S. Supreme
Court unanimously stated in Ex Parte Quirin, ``by universal
agreement and practice, the law of war draws a distinction
between. . .those who are lawful and unlawful combatants.
Lawful combatants are subject to capture and detention as
prisoners of war by opposing military forces. Unlawful
combatants are likewise subject to capture and detention, but,
in addition, they are subject to trial and punishment by
military tribunals for acts which render their belligerency
unlawful.''
In this campaign against terrorism, it is important that
the President have the full range of available forums for
seeking criminal accountability against persons for their
individual and command responsibility for violations of the law
of war. The military commission provides a traditionally
available mechanism to address these unconventional crimes.
Military commissions have been utilized and legally
accepted throughout our history to prosecute persons who
violate the laws of war. We have heard of some of the domestic
examples that have been stated here today, but they are also
used in the international arena with deep historical roots. The
international community has utilized military commissions and
tribunals to achieve justice, most notably at Nuremberg and in
the Far East. The tribunals which tried most of the leading
perpetrators of Nazi and Japanese war crimes were military
tribunals. These tribunals were followed by thousands of Allied
prosecutions of lower-level perpetrators under the Control
CounciL Law No. 10.
By the end of 1958, the Western Allies had used military
tribunals to sentence 5,025 Germans for war crimes. In the Far
East, 4,200 Japanese were convicted before military tribunals
convened by the United States, Australian, British, Chinese,
Dutch, and French forces for their atrocities committed during
the war.
Today, the commissions as envisioned by the President in
the Military Order, while different from those found in our
Article III courts, are in conformity with these historical
precedents and the world's current efforts to prosecute war
crimes through the ad hoc United Nations International Criminal
Tribunals for the Former Yugoslavia and Rwanda. To help
understand this, it may be helpful for me to articulate some
commonalities. Like its predecessors, in the Nuremberg and the
Far East International Military Tribunals, the Allied Control
Council Law cases, and the International Criminal Tribunals for
the Former Yugoslavia and Rwanda, the judges sit as both triers
of fact and law. In addition, decisions such as judicial
orders, judgments, and sentences are reached by a majority vote
and not unanimity. In all of the above proceedings, including
the Military Order, evidence of probative value is admitted.
And in the United Nations International Criminal Tribunals for
the Former Yugoslavia and Rwanda, proceedings have been and are
authorized to be closed, just as is contemplated in the
President's Order.
Mr. Chairman, members of the committee, since September
11th I have been asked about our criticisms of foreign military
tribunals. And I want to say in these cases what the United
States Government has done is to criticize the processes and
not the forums themselves. Also, since September 11th I have
been asked why not create an international tribunal. In our
view, the international practice should be to support sovereign
states seeking justice domestically when it is feasible and
would be credible, as we are trying to do in Sierra Leone and
in Cambodia. International tribunals are not and should not be
the courts of first redress, but of last resort. When domestic
justice is not possible for egregious war crimes due to a
failed state or a dysfunctional judicial system, the
international community may, through the Security Council or by
consent, step in on an ad hoc basis as it did in Rwanda and the
former Yugoslavia. But this is not the case in the United
States.
Our goal should be and this administration's policy is to
encourage states to pursue credible justice rather than
abdicating their responsibility. Because justice and the
administration of justice are a cornerstone of any democracy,
pursuing accountability for war crimes while respecting the
rule of law by a sovereign state must be encouraged at all
times. The President understands our sovereign responsibility
and has taken action to fulfill his duty to the American
people. In creating an additional option, the Nation is now
prepared and will have an additional forum to address these
wrongs when needed.
Mr. Chairman, members of the committee, I thank you for
your consideration, and I am prepared to answer any questions
you may have.
[The prepared statement of Amassador Prosper follos.
Statement of Hon. Pierre-Richard Prosper, Ambassador-at-Large for War
Crimes Issues, U.S. Department of State
Mr. Chairman, members of the committee, I thank you for this
opportunity to speak with you regarding the Military Order issued by
the President on November 13thin response to the tragic
events of September 11th. The events remind us that we must vigorously
pursue justice to ensure that the acts not go unpunished.
Mr. Chairman, members of the committee, I come before you as the
Ambassador-at-Large for War Crimes Issues and also as a former
prosecutor. Prior to my appointment to this post, I spent ten years in
the trenches as a line prosecutor. As a deputy district attorney in Los
Angeles, I prosecuted hundreds of cases and tried dozens of murder
cases and multiple murder cases as a member of the Hard Core Gang
Division. As an Assistant United States Attorney, I prosecuted and
investigated sophisticated international drug cartels trafficking tons
of cocaine into the streets of Los Angeles. And as a lead prosecutor
for the United Nations International Criminal Tribunal for Rwanda, I
successfully prosecuted, in a 14-month trial, the first-ever case of
genocide before an international tribunal under the 1948 Genocide
Convention.
With this experience, I recognize, understand, and truly believe
that there are different approaches that can be used to achieve
justice. I recognize that different procedures are allowed and that
different procedures are appropriate. No one approach is exclusive and
the approaches need not be identical for justice to be administered
fairly. But in all approaches what is important is that the procedures
ensure fundamental fairness. And that is what the President's order
calls for.
After the tragic events of September 11th, we as a nation were
forced to re-examine our traditional notions of security, our
conceptions of our attackers, and our approaches to bringing the
perpetrators to justice. The conventional view of terrorism as isolated
acts of egregious violence did not fit. The atrocities committed by the
al Qaida organization at the World Trade Center in New York, at the
headquarters of our Department of Defense, and in Pennsylvania were of
the kind that defied the imagination and shocked the conscience.
These atrocities are just as premeditated, just as systematic, just
as evil as the violations of international humanitarian law that I have
seen around the world. As the President's order recognizes, we must
call these attacks by their rightful name: war crimes.
President Bush recognized that the threat we currently face is as
grave as any we have confronted. While combating these war crimes
committed against U.S. citizens, it is important that the President be
able to act in the interest of this country to protect the security of
our citizens and ensure that justice is achieved. He has repeatedly
promised to use all the military, diplomatic, economic and legal
options available to ensure the safety of the American people and our
democratic way of life. The President should have the full range of
options available for addressing these wrongs. The Military Order adds
additional arrows to the President's quiver.
Should we be in a position to prosecute Bin Laden, his top
henchmen, and other members of al Qaida, this option should be
available to protect our civilian justice system against this
organization of terror. We should all ask ourselves whether we want to
bring into the domestic system dozens of persons who have proved they
are willing to murder thousands of Americans at a time and die in the
process. We all must think about the safety of the jurors, who may have
to be sequestered from their families for up to a year or more while a
complex trial unfolds. We all ought to remember the employees in the
civilian courts, such as the bailiff, court clerk, and court reporter
and ask ourselves whether this was the type of service they signed up
for--to be potential victims of terror while justice was pursued. And
we all must think also about the injured city of New York and the
security implications that would be associated with a trial of the al
Qaida organization.
With this security threat in mind, we should consider the option of
military commissions from two perspectives. First, the President's
Military Order is consistent with the precepts of international law.
And second, military commissions are the customary legal option for
bringing to justice the perpetrators of war crimes during times of war.
The Military Order's conclusion that we are in a state of armed
conflict deserves comment. Because military commissions are empowered
to try violations of the law of war, their jurisdiction is dependent
upon the existence of an armed conflict, which we have.
It is clear that this series of attacks against the United States
is more than isolated and sporadic acts of violence, or other acts of a
similar nature. Rather, a foreign, private terrorist network, with the
essential harboring and other support of the Taliban-led Afghanistan,
has issued a declaration of war against the United States. It has
organized, campaigned, trained, and over the course of years repeatedly
carried out cowardly, indiscriminate attacks, including the largest
attack in history against the territory of the United States in terms
of number of persons killed and property damage.
Tracing the criminal history of the organization further confirms
the state of armed conflict. A decade's worth of hostile statements by
Bin Laden over and over and over again state that he is at war against
the United States. He has instructed his followers to kill each and
every American civilian. We should also consider the intensity of the
hostilities and the systematic nature of the assaults. Consider the
fact that al Qaida is accused of bombing the World Trade Center in 1993
and attacking U.S. military service personnel serving in Somalia in the
same year. Consider that Bin Laden and al Qaida are accused of
attacking and bombing our embassies in Nairobi, Kenya and Dar es
Salaam, Tanzania. Remember that al Qaida is accused of perpetrating
last year's bombing of the U.S.S. Cole. And of course, added to this
history are the horrifying and unprovoked air assaults on the twin
towers in New York, the Pentagon, and the airplane tragedy in
Pennsylvania.
It is clear that the conduct of al Qaida cannot be considered
ordinary domestic crimes, and the perpetrators are not common
criminals. Indeed, one needs to look no further than the international
reaction to understand that September 11 was perceived as an armed
attack on the United States. NATO's North Atlantic Council declared
that the attack was directed from abroad and ``regarded as an action
covered by Article V of the Washington Treaty, which states that an
armed attack against one or more of the Allies in Europe or North
America shall be considered an attack against them all.'' The
Organization of American States, Australia and New Zealand activated
parallel provisions in their mutual defense treaties. UN Security
Council Resolutions 1368 and 1373 recognized our inherent right to
exercise self-defense. And UN Security Council Resolution 1377 added:
``acts of international terrorism constitute one of the most serious
threats to international peace and security in the twenty-first
century.''
We can also look at our domestic response, including the joint
resolution passed by this Congress authorizing ``the use of all
necessary and appropriate force'' in order to prevent any future acts
of international terrorism.
Mr. Chairman, members of the committee, we are at war, an
unconventional war conducted by unconventional means by an
unprecedented aggressor. Under long established legal principles, the
right to conduct armed conflict, lawful belligerency, is reserved only
to states and recognized armed forces or groups under responsible
command. Private persons lacking the basic indicia of organization and
the ability or willingness to conduct operations in accordance with the
laws of armed conflict have no legal right to wage warfare against a
state. In waging war the participants become unlawful combatants.
Because the members of al Qaida do not meet the criteria to be
lawful combatants under the law of war, they have no right to engage in
armed conflict and are unlawful combatants. And because their
intentional targeting and killing of civilians in time of international
armed conflict amount to war crimes, military commissions are available
for adjudicating their specific violations of the laws of war. As the
U.S. Supreme Court unanimously stated in Ex Parte Quirin: ``by
universal agreement and practice, the law of war draws a distinction
between the armed forces and the peaceful populations of belligerent
nations, and also between those who are lawful and unlawful combatants.
Lawful combatants are subject to capture and detention as prisoners of
war by opposing military forces. Unlawful combatants are likewise
subject to capture and detention, but, in addition, they are subject to
trial and punishment by military tribunals for acts which render their
belligerency unlawful.''
In this campaign against terrorism, it is important that the
President have the full range of available forums for seeking criminal
accountability against persons for their individual and command
responsibility for violations of the law of war. The military
commission provides a traditionally available mechanism to address
these unconventional crimes.
Military commissions have been utilized and legally accepted
throughout our history to prosecute persons who violate the laws of
war. They were used by General Winfield Scott during his operations in
Mexico, in the Civil War by President Lincoln, and in 1942 by President
Roosevelt. They are an internationally accepted practice with deep
historical roots. The international community has utilized military
commissions and tribunals to achieve justice, most notably at Nuremberg
and in the Far East. The tribunals which tried most of the leading
perpetrators of Nazi and Japanese war crimes were military tribunals.
These tribunals were followed by thousands of Allied prosecutions of
the lower-level perpetrators under the Control Council Law No. 10.
By the end of 1958, the Western Allies had used military tribunals
to sentence 5,025 Germans for war crimes. In the Far East, 4,200
Japanese were convicted before military tribunals convened by U.S.,
Australian, British, Chinese, Dutch, and French forces for their
atrocities committed during the war.
Today, the commissions as envisioned by the President in the
Military Order, while different from those found in our Article III
courts, are in conformity with these historical precedents and the
world's current efforts to prosecute war crimes through the United
Nations in the International Criminal Tribunals for the Former
Yugoslavia and Rwanda. To understand this it may be helpful for me to
articulate the commonalities. Like it's predecessors, in the Nuremberg
and Far East International Military Tribunals, the Allied Control
Council Law No. 10 proceedings, and the International Criminal
Tribunals for the former Yugoslavia and Rwanda, the judges sit as both
triers of law and of fact. In addition, decisions such as judicial
orders, judgments, and sentences are reached by a majority vote and not
unanimity. Evidence of a probative value is admitted. And in the United
Nations International Criminal Tribunals for the former Yugoslavia and
Rwanda, portions of the proceedings have been and are authorized to be
closed, just as is contemplated by the President's military order.
Mr. Chairman, members of the committee, since September
11th I have been asked about our criticisms of foreign
military tribunals. In these cases, we criticized the process and not
the forum.
Since September 11thI have also been asked why we do not
create an international tribunal? In our view, the international
practice should be to support sovereign states seeking justice
domestically when it is feasible and would be credible, as we are
trying to do in Sierra Leone and Cambodia. International tribunals are
not and should not be the courts of first redress, but of last resort.
When domestic justice is not possible for egregious war crimes due to a
failed state or a dysfunctional judicial system, the international
community may through the Security Council or by consent, step in on an
ad hoc basis as in Rwanda and Yugoslavia. That is not the case in the
United States.
Our goal should be and this administration's policy is to encourage
states to pursue credible justice rather than abdicating the
responsibility. Because justice and the administration of justice are a
cornerstone of any democracy, pursuing accountability for war crimes
while respecting the rule of law by a sovereign state must be
encouraged at all times. The President understands our sovereign
responsibility and has taken action to fulfill his duty to the American
people. In creating an additional option, the nation is now prepared
and will have an additional forum to address these wrongs when needed.
I thank you for your consideration in this matter and I am prepared
to answer any questions you may have.
Senator Schumer. Thank you very much, Mr. Ambassador. We
appreciate your remarks, and you noted as you closed your
testimony that the criticism that the United States has had of
others of these is not that it is a military tribunal but,
rather, the process. That is one of the things we want to
learn, is what process is envisioned for these. And there are
lots of questions that have not been answered by the
administration.
Let me start out by asking you this: You mentioned the
military tribunals that tried Nazis and Japanese, and I think
by most people's view, they were successful, and there are
direct analogies. How would these tribunals that the President
is proposing differ in their rules from those that were used
after World War II for Nazis and for Japanese war criminals?
Ambassador Prosper. Well, Mr. Chairman, at this time I
would be speculating to answer that question because we are in
the process or the Department of Defense is in the process of
drafting the rules. We will have to wait and see what the rules
look like at the end to do a line-by-line comparison with the
Nuremberg/Far East proceedings or even a comparison with the
existing ad hoc tribunals.
But I think if you look at the general framework that has
been put forth by the President, it is consistent with all
these approaches in that, firstly, the President calls for full
and fair trials; the judges will be both the trier of fact and
the trier of law, as I stated. The decisions and verdicts will
be reached by two-thirds or a majority vote, and probative
evidence will be admitted, just to name a few examples.
Senator Schumer. Let me ask you this: How would these, at
least in terms of the President's statements thus far--and I
know that they haven't formulated the rules. How would they
differ from, say--I think Senator Hatch mentioned courts-
martials. How would they differ from courts-martials? Why is
the forum of a military tribunal as outlined by the President
superior to using the general process and procedures of courts-
martials for some of these enemies--I guess is the right word--
that we pick up?
Ambassador Prosper. I believe one of the subsequent
witnesses will testify on this issue, but what I can say here
is there are a few differences. With a courts-martial process,
it will be a case that would be tried before jurors. There is
the issue of trying the case before a jury or judges. And also
with the courts-martial process, generally that is reserved to
prosecute prisoners of war. And here in this instance, we are
prosecuting unlawful combatants, and we need to remember that
the Al Qaeda organization are unlawful combatants and do not
carry prisoner of war status.
Senator Schumer. But why wouldn't the courts-martial
process--and I am not advocating it at this point. I am just
trying to ask some questions. Why wouldn't the courts-martial
process work for unlawful combatants as well as prisoners of
war? Many of the same problems that you have mentioned we would
face in an ordinary trial--and no one is advocating that--would
be solved by the courts-martial process. It is one that is
accepted, as I think Mr. Sessions mentioned. It has generally
been regarded as a process that has consensus. And it has
worked for prisoners of war.
So I understand that these people are unlawful combatants.
The rules of war do not apply in a war on terrorism. It is one
of the reasons we are having this hearing because we have to
break new ground. Nonetheless, that doesn't mean that old
models don't work.
Ambassador Prosper. Well, I think what we need to do is
take a look at the nature of offenses themselves and recognize
that there is the need for a specialized process to address and
adjudicate these offenses.
What I have seen from my personal experience working in the
tribunals is that it is wise at times to have a specialized
tribunal to focus on these abuses. And just by way of example,
I think, again, we need to refer back and look back at the fact
that these are not just ordinary crimes where you may have an
eyewitness, for example, that will be able to prove the entire
case or it is a crime that occurred in a room of this size.
Generally, when you are prosecuting or investigating war
crimes, the realization becomes that these are the type of
offenses in which the entire country, for example, is the crime
scene. If you look at the events of the conduct of Al Qaeda,
the entire world is a crime scene. And when you take it from
that perspective, you need to create a court that has the
ability or the special expertise to inquire, to allow the truth
to unfold, and that will also have flexible rules to permit the
introduction of evidence that may be probative.
I think when we look at the issue of the flexible rule on
probative evidence, we shouldn't look at it in the light that
it is the denial of rights to an accused, because the rules
apply both ways. You see, the purpose of the process and the
purpose of having a forum that is flexible is to allow the
truth to come out so that the trier of fact can adequately
judge and assess the violations that have occurred.
Senator Schumer. A final question because my time is
expiring. Would you recommend that these tribunals ever be used
for somebody who is picked up within the United States,
assuming they are not a citizen?
Ambassador Prosper. I think what we need to do, we need to
look at the Executive Order itself and look at the category of
people that are subject to the Order, and then look at the
offenses that have been committed. I have heard people talk
about the fact that these courts may be used against resident
aliens and so on. But I think what we need to look at as
another jurisdictional element is that they must commit war
crimes. They can't be picked up and prosecuted for a Department
of Motor Vehicle violation.
Senator Schumer. Obviously. But assuming they are engaged
in an act of terrorism, what would be your recommendation,
given your extensive experience?
Ambassador Prosper. These issues will need to be judged on
a case-by-case basis, and the President will make the final
decision once these cases have been presented to him with all
the facts, and only at that time can--
Senator Schumer. But there are going to have to be some
general rules. You can't just say--I mean, it wouldn't make any
sense to say that some people who are picked up for crimes of
terrorism in the United States would get one type of justice
and others would get another. Or are you saying that that could
possibly happen?
Ambassador Prosper. What I am saying is that there are a
lot of factors that will go into the decision made by the
President, including procedural rules that are developed and
the factual circumstances of the case.
Senator Schumer. Okay. Thank you, Mr. Ambassador.
Mr. Sessions? Senator Sessions? We are going to try to
stick to the 5-minute rule because we have a whole other panel
coming.
Senator Sessions. It does remain with the President? If he
thought a trial could be tried in civil district court, he
could allow it to go there? Or he could sent it to a military
tribunal? Is that your understanding of the Order?
Ambassador Prosper. That is absolutely correct, and I
think, again, one thing that I would like to highlight here is
what the President has done is created an option. He has not
ruled out the Federal courts or the Article III courts. He is
creating an option. So at the time that a particular case comes
to his desk, he will balance the interests of the country and
make the appropriate decision at that time.
Senator Sessions. Now, with regard to the MacArthur
military commissions and tribunals in the East, he initiated
that without any Presidential authority, didn't he, and
actually tried people on his own authority as the commander in
the region?
Ambassador Prosper. That is correct, and that is
permissible. What we have here is the President has decided
that this issue is serious enough that it warrants his personal
attention.
Senator Sessions. And MacArthur wasn't given the kind of
protections and an order from the President that personally
guaranteed Presidential protection for the right to counsel,
the right to a full and fair trial, and that sort of thing.
Isn't that true? So this is much stronger protection than what
took place after World War II.
Ambassador Prosper. And I think a factor that we can add to
this is that there is an order from the Commander-in-Chief
calling for full and fair trials, and that should also be
remembered when we examine and comment on this process.
Senator Sessions. Well, I think it is important we have
that full and fair trial, but ultimately what I think is a good
safeguard for us here and those who are nervous about these
procedures is the President has kept this as his personal
responsibility. He has personally put his credibility on the
line to give a full and fair trial in those circumstances in
military tribunals that he decides is appropriate to American
security. That is different from some of the historical
examples we have discussed, is it not?
Ambassador Prosper. It is.
Senator Sessions. You know, I was thinking about how you
would try somebody--let's say you catch a person--I was a
prosecutor, and I am glad to see you have been in the courtroom
and tried a lot of cases. There are some basic things that you
run up against. You catch an Al Qaeda member in Kabul with an
anthrax factory, and you don't have direct proof that he
intended to send it to New York. Maybe you have proof he
intended to send it to France. Would there be any way under
traditional rules of law that you would have venue in New York
or any other place in the United States to try that? Or would
that be a difficult legal question to overcome?
Ambassador Prosper. Well, those are difficult legal
questions that I know my colleagues in the Department of
Justice will be able to answer. But the advantage of the
military commission is that it can prosecute people who have
committed war crimes against the United States, essentially
regardless of venue. Obviously, we look at the events in New
York; the President will make a decision at that time as to who
should be prosecuted. But this approach is a flexible approach,
and the court will be able to sit in any location, whether
within or outside the country.
Senator Sessions. And it strikes me that no city in its
right mind would want to have a nest of Al Qaeda terrorists to
be tried in a normal Federal trial that would take years to
conclude, that would subject the city to all kinds of threats
that it might not otherwise be facing, and that would be a
reason that we might want to try some of these people in
foreign countries, wouldn't it be, for the basic security of
the United States?
Ambassador Prosper. Security is a factor that will have to
be considered, and the President will be in the unique
position, not only as Commander-in-Chief but also the President
of this country, to assess what is in the best interest of the
country, whether or not the trial should be held in some more
remote location or in Manhattan, for example.
Senator Sessions. And you touched on something very
fundamental that former Attorney General Bill Barr testified to
here recently, just last week. This was what he said about the
difference between a war-type trial and a normal civil trial.
He said, ``When the United States is engaged in armed conflict
and exercising its power of national defense against a foreign
enemy, it is acting in an entirely different realm than that of
domestic law enforcement.''
Would you agree with that?
Ambassador Prosper. Yes, I would.
Senator Sessions. We don't give people who are attacking us
Miranda rights before we fire on them. Is that correct?
Ambassador Prosper. I think what we can say is the first
priority for our service members overseas is not investigation
and collection of evidence. It is security. It is neutralizing
the threat. After the fact, when a particular location has been
stabilized, the particular armed forces or members of the armed
forces will be able to go in and conduct investigations. And
oftentimes at that point in time you will have serious
questions as to chain of custody, if you will, because the
scene may not have been secured. Obviously there is a conflict
going on. And this is why in the ad hoc tribunals that exist
today there are flexible standards for the introduction of
evidence, and the trier of fact, experienced judges will be the
ones that will judge and give the appropriate weight to the
evidence.
Senator Sessions. Thank you. I would just say that, as Mr.
Barr stated also, ``When we wage war, the Constitution does not
give foreign enemies rights to invoke against us; rather, the
Constitution provides us with the means to defeat and destroy
our enemies.'' Otherwise, our liberties would be subject to
potential victory by a terrorist group who doesn't value any of
the values that we cherish in this country.
So I think we need to understand this distinction, Mr.
Chairman, when we are in a war situation as opposed to a
domestic law enforcement situation, and historically all
nations, to my knowledge, have always understood the great
difference.
Senator Schumer. And I think that is generally accepted by
just about everybody here.
Senator Feinstein?
Senator Feinstein. Thanks very much, Mr. Chairman.
In order to clarify the context and confines of this, I
want to ask my questions working off of the chief counsel's op
ed in the New York Times, if I might. In that op ed, he states,
``The Order covers only foreign enemy war criminals. It does
not cover United States citizens or even enemy soldiers abiding
by the laws of war. Under the Order, the President will refer
to military commissions only non-citizens who are members or
active supporters of Al Qaeda or other international terrorist
organizations.''
So I would assume that that would mean that this would be
reserved for only the principals and that legal residents who
may have had some peripheral involvement would not--would be
subject to civil law, not a military tribunal. Is that correct?
Ambassador Prosper. The idea behind this Order is to go
after exactly just that, people who bear the responsibility for
these egregious abuses. Another jurisdictional element is the
fact that they need to have committed war crimes. These are
grave violations that require organization, leadership, and
obviously promotion of the purpose.
Senator Feinstein. Well, that is not a specific answer. I
will ask these same questions of the Attorney General on
Thursday, but let me go to the second one. ``The military
commission trials are not secret. The President's Order
authorizes the Secretary of Defense to close proceedings to
protect classified information. It does not require that any
trial or even portions of a trial be conducted in secret.
Trials before military commissions will be as open as possible,
consistent with the urgent needs of national security.''
I trust that what that means is that those parts of a trial
that require the use of classified information will be in
camera, and those that do not, which is the bulk of the trial,
would be in the open. Is that correct?
Ambassador Prosper. That is correct. But what I would like
to add to this is some of my personal experiences with the ad
hoc tribunal.
In prosecuting the first genocide case, there were portions
of my proceedings that were closed, and there were portions in
the Hague tribunal proceedings that were closed. In those
instances, it wasn't necessarily because of classified
information. There were other issues such as witness
protection. In my case, we had several witnesses who testified
to sexual violence, being raped by--
Senator Feinstein. Respectfully, that is not my question.
My question is: What will it be in this case?
Ambassador Prosper. And my point is that while the
proceedings may be closed for issues of national security, we
cannot rule out the possibility that there may be other
legitimate reasons to close the proceedings in relation to the
witnesses.
Senator Feinstein. I understand. Let me ask my next
question, and I quote again. ``Everyone tried before a military
commission will know the charges against him and be represented
by qualified counsel and be allowed to present a defense.''
Would that be a counsel of the defendant's choice, or would
that be a counsel provided by the Government?
Ambassador Prosper. We will have to see exactly what the
rules promulgated by the Secretary of Defense call for. The
Order has instructed the Secretary of Defense to promulgate
rules that will go to the conduct of defense attorneys, hiring
defense attorneys, appointing defense attorneys and so on. So
we will have to see what the specific rules--
Senator Feinstein. All right. I will ask that question
Thursday.
The last one: ``The Order preserves judicial review in
civilian courts. Under the Order, anyone arrested, detained, or
tried in the United States by a military commission will be
able to challenge the lawfulness of the Commission's
jurisdiction through a habeas corpus in a Federal court.''
Could you expand on that, please?
Ambassador Prosper. I think that particular issue I would
suggest that you direct that question to the Department of
Justice because those are the type of issues that the
Department of Justice raises, the habeas corpus-type
proceedings, and they would be the ones defending it. But--I
will leave it at that. Thank you.
Senator Feinstein. Thank you. That completes my questions.
Senator Schumer. Thank you, Senator Feinstein.
Senator Hatch?
Senator Hatch. I am going to pass, but we welcome you here.
We are grateful for your testimony, and thank you for coming.
Ambassador Prosper. Thank you.
Senator Schumer. Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Sir, I admire your work on the prosecutions in Rwanda. We
have talked about that in the past. And I am pleased to see you
here. Let me just say, though, that in the present case many
have said that the President's proposed military commission
could be counterproductive to our efforts to ease anti-American
hatred and tension in the Arab and Muslim world. Clearly, a
civilian court would be more likely than a military tribunal to
confer a legitimacy on any ultimate verdict, and this would be
true not only in the minds of the people here in the United
States but also around the world.
Unlike the military tribunal, our Federal courts are
independent of the executive branch. Jurors bring their own
skepticism of the Government to court, which would further
demonstrate the fairness of the process. Indeed, as I have
watched the arguments unfold in editorial pages and on
television talk shows, I see that many legal commentators on
both sides of the political spectrum argue that the United
States should turn to existing safeguards, perhaps, as I said
earlier, even enhancing those existing safeguards to protect
highly sensitive evidence while still making an open case
against Al Qaeda in a civilian court.
In so doing, the United States could set the historical
record by exposing the true nature of the crimes that were
committed. And really, in a related way, some have also raised
the concern that the President's proposed military tribunal
could actually undermine our ability to protect Americans
abroad who are subject to special or military courts in other
countries. As William Safire said in his column on Monday of
this week, ``On what leg does the United States now stand when
China sentences an American to death after a military trial
devoid of counsel chosen by the defendant?''
Aren't you somewhat concerned that Americans will be
subject to an increased risk of trials by military or special
courts in foreign nations with little or no due process
protections as a consequence of the use of President Bush's
proposed military tribunal?
Ambassador Prosper. Thank you, Senator. I think one point
that needs to be added to the debate, if you will, is that in a
military system there is adoption of what I will call command
influence, and that is that the jurists are required to remain
impartial and not be influenced by the President, by the
Commander-in-Chief, in making their decisions.
In the end, I think that when the finished product is put
forth, the international community will see what is
promulgated, what is envisioned by the President, and what is
actually articulated by the Secretary of Defense in the rules,
is that it is or will be a process that will not only meet the
President's Order and provide for a full and fair trial, but it
will meet requirements of fundamental fairness, international
standards, so that when we go out there and we talk to our
allies and people see the finished product, it will be viewed
as a fair process. And I think that is important, and that will
be the principle that we will put forth and that we will ask
others to stand by in whatever proceedings they may invoke.
Senator Feingold. So you are not at all concerned that the
use of military tribunals would be used, whether they are
actually fair or not, as an excuse for other countries to more
extensively use military tribunals against Americans?
Ambassador Prosper. I would be concerned if proceedings
were used against Americans that are not fair and do not offer
fundamental fairness. If a judicial body, be it civil,
military, or ad hoc, is properly convened, then it is properly
convened. But the key is the process, and we must look and
examine the process.
Senator Feingold. Let me ask you another question. You have
indicated that what the President has done here is created
another option. But by prosecuting terrorists for war crimes
only, as specified under the Presidential Order, aren't we, in
fact, in a way limiting our prosecutorial options? In civilian
courts, we could rely on extensive anti-terrorism legislation
to try those responsible for the September 11th atrocities. In
military commissions, as you have discussed rather well, we are
limited to trials for violations of the laws of war. Does it
make sense to limit our prosecutorial options in this way? And
if the administration proceeds with a trial of terrorists
before military commissions, doesn't it at least make sense to
ask for congressional action to expand the range of crimes that
could be tried to include terrorism-related crimes?
Ambassador Prosper. I think you do raise a good point that
we want to have options and we want to be able to have a broad
reach to cover the offenses that occurred. And I believe that
this is why the President, when he will make his final
decision, will be able to examine these issues. In appropriate
cases, he may determine that it is appropriate to have the
accused person go before the civilian system, our Article III
courts. In other cases--you know, of course, we need to look at
the facts--a decision may be made it is more appropriate to try
it before a military commission. So I think we do have the
options and we are not limited. The President will make the
decision at the appropriate time.
Senator Feingold. Let me try one other question. As you may
know, at least one of our coalition allies, Spain, has already
expressed its concern with the President's proposed military
commission and said that it will not extradite eight suspected
terrorists to the United States. It appears that one
significant downside to pursuing the President's proposed
military commission approach could be that our coalition allies
will not be willing to cooperate fully with bringing suspected
terrorists to the United States to stand trial, which to me is
an extremely serious concern.
Aren't you concerned by the very real prospect that going
forward with the President's proposed military commission could
actually diminish our Nation's ability to try suspected
terrorists and bring them to justice?
Ambassador Prosper. Regarding the case of Spain, an
extradition request has not been put forth, to the best of my
knowledge, and the Spanish Government has not denied such a
request. In fact, I believe when the President of Spain was
here, he said that he would entertain a request when received
and consider all the surrounding circumstances.
I think we will have the responsibility, once the
commission is actually created and the rules are put forth, to
talk to our allies, to show them that this is a fair process.
It does provide fundamental fairness. The military judges or
lawyers that are attached to the proceedings are competent and
credible people, and we must recognize that a lot of the
lawyers and judges in our military system are some of the
finest we have in the countries. They went to the finest law
schools. Many have been out in the civilian system.
So we will have to make the case, and I do not believe that
it will be a hard case to make.
Senator Feingold. Well, I admire your optimism, but the
matter of making sure we have absolute maximum access to trying
these terrorists should be a very serious consideration. I
question whether it is going to be so simple to persuade all of
our allies to overlook their concerns about fairness in this
process, and I think it is something that should be taken
extremely seriously in the name of bringing terrorists to
justice.
Thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator Feingold.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman. I regret that I
have not been able to be present for a good bit of the
proceedings, but we are in another hearing room simultaneously
on cloning, and I had to be present for that session.
With respect to the jurisdiction of the Federal courts,
there is a provision in the Executive Order which essentially
says that no one can have any redress to the Federal courts or
any other court. And that runs directly in conflict with the
constitutional provision which says that the writ of habeas
corpus may not be suspended except in time of invasion or
rebellion.
Is it possible to implement military tribunals which runs
afoul of that constitutional provision?
Ambassador Prosper. Well, I will leave the constitutional
questions to the Department of Justice, but the President has
acted within his authority. And in order for the military
commission to be convened, we must have an armed conflict. We
must be in a state of armed conflict, and that is part of the
determination. The Order, the President's Order, begins by
saying we are in a state of armed conflict, and, again, if we
look at the conduct and the events that have unfolded over the
years in relation to Al Qaeda, we can see that they have waged
a war against the United States. So military commissions are
allowable in that context and are allowed to stand independent.
Senator Specter. Well, when you talk about leaving that to
the Department of Justice, I would certainly agree with you
that the Department of Justice ought to be involved. The
testimony we heard last week was that the Department of Justice
had, in fact, not been consulted. That is what the Assistant
Attorney General in charge of the Criminal Division testified
to. And the President on the face of the Executive Order has
left this to the Department of Defense, so that a very
important threshold question is how the Executive Order meshes
with the constitutional requirement that the writ of habeas
corpus be available except in case of rebellion or invasion.
Now, there are very serious issues involved beyond any
question, and we know that again this morning from the comments
made yesterday by Homeland Administrator Ridge that we now have
another threat warning.
When you comment that the President is acting within his
authority, the Constitution gives the authority to the Congress
to establish military tribunals, and the implementing
legislation, which is cited in the President's Executive Order,
refers to a statute which says that, unless impracticable, the
President shall utilize or implement regulations of military
tribunals which conform to the rules of law and evidence in the
United States district courts.
Now, the Congress has been very cooperative with the
President, obviously, giving the authorization for the use of
force on the 14th of September, 3 days after the terrorist
attack, providing the appropriation of $40 billion, and
providing terrorist legislation on a relatively fast track, and
congressional inputs are obviously very important, as are the
inputs of the courts and the constitutional system which we
have for separation of power.
Now, perhaps there does not have to be an amplification of
impracticability in light of the terrorist attack and the
continuing threats, but I would be interested in your
observations as to what predicates the President has to
establish to show impracticability to carry out the
congressional requirement for use of the regular rules of
evidence or rules of law which prevail in District Courts.
Ambassador Prosper. What I can say on this issue is--and I
will draw from my experiences as a war crimes prosecutor--the
rules at times need to be different to prosecute cases of this
magnitude. At this point in time I do not think we can say that
the UCMJ will be completely thrown out. What is going to happen
here, it is my understanding that the Department of Defense
will create a body of rules that will be used in this process.
Perhaps it will draw from the UCMJ, perhaps it will draw from
our Federal statute. I do now know. But what is happening here,
this will be a commission that is actually created and will
have the necessary tools to adequately address this problem and
provide for a full and fair trial.
Senator Specter. Let me ask you one further question, which
is tangential, but one I would like to have your views on. As
we set forth rules for military tribunals, this may have an
impact on war crimes tribunals generally as to where we may be
heading for an international criminal court, although the
United States has not signed on. We have not had ratification
by the Senate on the War Crimes Tribunal for Yugoslavia. The
War Crimes Tribunal, with the key prosecutor, Carla Del Ponte,
investigated General Wesley Clark on the complaint of Russia
and Yugoslavia for possible war crimes, and the issues under
investigation involved whether NATO had targeted civilians or
whether NATO and its commanding officer, General Clark, had
been at fault in carelessly targeting, which endangered
civilians. If that kind of a standard is to be employed, making
it a fact question for the prosecutor, it seems to me that U.S.
military personnel all the way up to four-star General Clark,
would be at risk on a war crimes tribunal, giving very very
broad discretion and making it highly unlikely that the United
States would or perhaps should ever join in an international
criminal court. Do you have an opinion or a judgment on that
range of discretion for a prosecutor in an international
tribunal?
Ambassador Prosper. Senator, that is one of the issues of
concern for the administration regarding the ICC, the
International Criminal Court, and that is the fact that you
have or may have a prosecutor that is answerable to no one, and
will launch off in investigations that could be political
investigations and not based in fact or based in law. There is
no check to the process.
Another objection that we have to the ICC is the fact that
it will exercise jurisdiction over nonparty states. As you
mentioned, we have not ratified the treaty, the President has
not sent it up for ratification, but the proponents of the ICC
believe that regardless, it can exercise jurisdiction over us
just because, just because a document exists and just because
other states, 60 states when it come into force, have decided
that is the way to go. That is our objection. The safeguards
are not in place. The prosecutor is not answerable.
Senator Specter. Thank you.
Senator Schumer. Thank you, Senator Specter.
Senator Durbin.
Senator Durbin. Thank you very much, Ambassador Prosper,
for being with us today. I will make a prefatory comment and
then I will try to ask two questions.
The prefatory comment is this: some of the members of this
panel have suggested that it is important to them that the
President is willing to accept personal responsibility for this
decision. I think that is important, but under our
Constitution, it is not enough. Under the Constitution Congress
must also accept responsibility, and under Article I, Section 8
of the Constitution, it is my belief that Congress has the sole
authority to declare war. I have noticed that Presidents since
Franklin Roosevelt have avoided bringing that question to
Congress with the exception of former President Bush, who with
the urging of many of us on Capitol Hill, brought this question
for a vote, which I thought was important constitutionally and
nationally, that the American people expressed their feelings
through their elected representatives.
And I would also note that this President Bush currently
serving, on September 14th asked for an authorization for us of
military force, which I considered consistent with Article I,
Section 8, and with no dissenting votes in the Senate and only
one in the House, received that authority. I thought that was
the right thing to do, and as painful as it was for many of us
to consider the prospect of war, we accepted our congressional
responsibility and did it.
Now, in your very cogent remarks, Mr. Ambassador, you have
really laid the case for military tribunals based on the
concept of an armed conflict, and I quote from your statement,
``Because military commissions are in part to try violations of
law of war, their jurisdiction is dependent on the existence of
an armed conflict, which we have.'' And then you go on to say,
when you were justifying the fact that we are in armed
conflict, ``We can also look at our domestic response,
including the joint resolution passed by this Congress,
authorizing the use of all necessary and appropriate force'' in
order to prevent any future acts of international terrorism.
Ambassador Prosper, I think that that reasoning is sound,
but I think it limits the President beyond any limitation that
he has accepted with his Military Order. Specifically let me
point this out. In the resolution passed by Congress, and I
will read from it, ``The President is authorized to use all
necessary and appropriate force against nations, organizations,
or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11th,
2001, or harbored such organizations or persons in order to
prevent any future acts of international terrorism against the
United States.''
That authorization for armed conflict from Congress
referred to in your testimony as the basis for a military
commission and the President's Military Order, limits it to the
occurrence of September 11th, 2001. And if you read the
President's Order, in terms of his engaging military tribunals,
the terms ``individual subject to this order'' included a
person who has engaged in, aided or abetted or conspired to
commit acts of international terrorism or acts in preparation
therefore that have caused, threatened to cause, or have as
their aim to cause injury to or adverse effect on the United
States, its citizens, national security, foreign policy or
economy.
If you follow what I am leading to, if you are going to use
congressional action and the definition of armed conflict in
this joint resolution, that definition is specific to the
events of September 11th. The President's request or Military
Order for military commissions goes far beyond that. How would
you reconcile it?
Ambassador Prosper. Thank you, Senator. The reference to
the joint resolution essentially is a--it was a factor to be
considered when making a case against al Qaeda. We not only
look to the joint resolution itself to see how the Congress
viewed the events of September 11th and the actions of this
international terrorist organization, but we also need to look
at the international response and the actions and conduct of al
Qaeda itself to show that there is an armed conflict. So it
does go beyond or even backward, if you will, from September
11th.
Senator Durbin. Let us be more specific. So if we should
happen to find a terrorist associated with Hamas, could the
President bring that terrorist before a military tribunal under
this Military Order?
Ambassador Prosper. The Military Order--what will be needed
in order for someone to be brought to or before the military
commission is that there is a state of armed conflict and that
that particular person is part of that armed conflict and has
committed war crimes.
Senator Durbin. So, are you agreeing with me then that
unless we can create a nexus between the person brought before
the tribunal and the events of September 11th, then this
Miliary Order does not apply?
Ambassador Prosper. Unless we can prove a nexus between the
particular individual and armed conflict and violations of laws
of war, then the person is not subject to the--
Senator Durbin. Well, I think you have given a good legal
answer, but I think you have avoided my question, and I will
not press it, other than to say I think that is a serious issue
that has to be raised and responded to, and I think that there
is need for military tribunals in this case, but I think we
should take care that we create them so that we not only
reflect the personal responsibility of the President but the
congressional responsibility we have under the Constitution.
The last point I will make to you was made by Senator
Feingold. In the Country Report for the year 2000 from your
State Department, they listed about a dozen countries out of
195 that the Secretary concluded violated the right to a fair
public trial, and specifically referred to military tribunals
in Peru and Nigeria. I know the case in Peru because I had one
of my constituents who has languished in prison for years
waiting for a trial before a tribunal in Peru. I will go back
to the point that Senator Feingold raised. Was the State
Department consulted in the promulgation of this Military Order
so that we would have a consistent foreign policy in what we
expect of other nations and what we are prepared to expect of
ourselves in the establishing of the standards of justice and
military tribunals?
Ambassador Prosper. Thank you, Senator. To begin with I
would like to comment on the Peru and Nigerian cases in
general. And what we did there was we did not criticize
military tribunals, per se. We criticized the process, as you
know, because the processes were not fair, the judges wore
masks, they were not known, the accused were not informed of
the charges against them, and there is a whole list that we can
go down if we start comparing the different criticisms. But in
looking at this Order and when this, actually the idea of
military commissions came up, the State Department was part of
the development process, if you will, and the President was
advised by his appropriate advisers on all aspects.
Senator Durbin. One last brief question. If John Walker
Lindh is charged with a crime, the man who was apprehended in
the fortress in Mazar-e-Sharif, an American who was associated
in some way with the Taliban, if he is charged with a crime, he
could not be tried under a military tribunal by the President's
definition; is that true?
Ambassador Prosper. The definition is limited to non-
Americans, yes.
Senator Durbin. Thank you.
Senator Schumer. Thank you, Senator Durbin, and thank you,
Mr. Ambassador, for your testimony before us.
Ambassador Prosper. Thank you very much.
Senator Schumer. We will now call the second panel to come
forward. While we do, I would ask unanimous consent the record
be held open for a week for questions, written questions from
the members and other matters, without objection.
[The prepared statements of Senator Leahy and Senator
Thurmond follow:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
Today this Committee holds two more hearings in an important and
timely series begun last week on the Department of Justice's response
to the September 11 attacks. Today's sessions focus on the
Administration's plan to form military commissions that bypass our
established court system and on the hundreds of people detained and
arrested in the aftermath of September 11. I commend Senator Schumer,
the chair of the Administrative Oversight and the Courts Subcommittee,
and Senator Feingold, the chair of our Constitution Subcommittee, for
holding today's hearings. They are acting in the finest tradition of
the Senate and this country.
Last week, Senator Specter wrote an article expressing his concern
that the Administration had not demonstrated the need for the
President's extraordinarily broad order on military commissions.
Others, Democrats and Republicans, have expressed concern with the
broad powers asserted by the Administration and with the manner in
which it has asserted them--bypassing both Congress and the courts.
Last Wednesday's hearing allowed this Committee to hear firsthand from
legal experts across the spectrum on these questions and to assist in
clarifying the Administration's intentions and actions.
It is never easy to raise questions regarding the conduct of the
executive branch when we have military forces in combat, even when
those questions do not focus on the military operations. The matters we
are examining concern homeland security, constitutional rights, and
preservation of the checks and balances on governmental authority that
lay at the foundation of our constitutional democracy. This Committee
hopes to cast the light of reasoned public inquiry on the
Administration's actions, especially sweeping unilateral actions as
might affect fundamental rights. Ultimately, taking a close look at
assertions of government power is among the best ways we have to
preserve our freedoms and keep our country safe.
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
I am pleased that you are holding this hearing on President Bush's
proposed use of military commissions. I believe that a full discussion
of this issue will display to the American people that military
commissions are appropriate forums for the trials of war criminals
associated with the al Qaida terrorist network. Military commission
have been convened throughout the history of our Nation, and the courts
have repeatedly recognized their legitimacy. Additionally, these
commissions will protect our national security interests and ensure the
safety of trial participants. I believe that these commissions can be
utilized in a way that will provide fair trials to all accused
terrorists.
President Bush's military order providing for the trial of foreign
terrorists by military commissions has been criticized as an affront to
our Nation's tradition of impartial justice. I disagree with this
criticism. Not only is the President's order historically based, but it
is in accordance with current law. Military commissions are rooted in
American history, from the trial of deserters in the Mexican-American
War to the trial of President Lincoln's assassins. The Supreme Court
has repeatedly upheld the us of military commissions. In Ex Parte
Quirin, 317 U.S. 1 (1942), the Supreme Court unanimously upheld
President Roosevelt's use of a military commission to try Nazi
saboteurs during World War II. The Court also approved the use of a
military commission to try the Japanese commander in the Philippines
for violations of the laws of war. In re Yamashita, 327 U.S. 1 (1946).
In addition to historical and legal precedent, Congress has
approved, as part of the Code of Military Justice, the use of military
commissions under the law of war (10 U.S.C. Sec. 821,836). Some critics
have suggested that the President does not have authority under the
Code of Military Justice because we are not officially in a state of
war. However, the murderers who flew commercial airliners into the
World Trade Center towers and the Pentagon perpetrated nothing less
than acts of war. The unimaginable destruction in New York and the
damage done to the symbol of American military power are sobering
reminders of the acts of war that were committed on our soil.
At this moment, American forces are engaged in a real war against
terrorism. It is a unique war because al Qaida is a loosely organized
group spread throughout many different countries. because the enemy is
a shadowy network of international terrorists, it is unreasonable to
insist that an official declaration of war be made.
Congress also recently acknowledged, in authorizing the President's
use of force against those responsible for the terrorist attacks, that
the ``President has authorizing the President has authority under the
Constitution to take action to deter and prevent acts of international
terrorism against the United States.'' Pub. L. No. 107-40 115 Stat.
224, (2001). Because the President has clearly determined that the use
of military commissions would serve to prevent future terrorist
attacks, he is acting according to Congressionally recognized powers
under the Constitution.
It is important to stress that the President's military order
invokes his powers as Commander in Chief, which is derived from the
Constitution and is not dependent upon statutory authority. The
President's powers and responsibilities in defending our Country are
separate and distinct from his authority to enforce domestic laws. The
ability to try enemy war criminals in an efficient manner is an
important component of our war on terrorism. It is just one part of the
President's war arsenal. To fight the war effectively, we must
demonstrate that the barbaric actions of al Qaida will not go
unpunished, and we must disrupt their ability to operate by bringing
their members to trial.
Military commissions are preferable to trial in civilian courts
because of the unique conditions of war. For example, these commissions
would allow for the more flexible use of classified information. If
such information were disclosed in a civilian court, intelligence
operations could be seriously endangered. Critics have pointed to the
fact that Federal courts are currently able to handle classified
information under the Classified Information Procedures Act. 18 U.S.C.
app. 3. However, the Act provides for the disclosure of classified
information under certain circumstances, and defense lawyers can use
this as a bargaining chip to frustrate the prosecution. While this
system may be acceptable in domestic law enforcement, it presents
serious roadblocks to the effective use of trials as a national
security tool.
Military tribunals would also better protect witnesses and other
trial participants. Additionally, more flexible rules would allow for
the use of evidence collected during war. Rules governing the gathering
of evidence for use in trial courts in the United States do not
necessarily apply to evidence gathered on the battlefield.
Lastly, Mr. Chairman, I would like to point out that defendants
brought to trial before a military commission would still have access
to review by way of habeas corpus. President Bush, in issuing this
order, does not intend to convene commissions that render unfair
judgments. On the contrary, the order specified that a ``full and
fair'' trial must be given. If used fairly, military commissions will
be constitutional, lawful, and effective tools in the war against
terror. It is in fact a testament to our sense of fairness that we are
providing trials for an enemy that has a sworn duty to destroy the
American way of life.
I want to thank our second panel. I saw that all of you
were here earlier and appreciate your patients. We are going to
call the witnesses. I will introduce each one, but just to
inform you folks, it is going to be Terwilliger, Tribe,
Nardotti, Sunstein and Lynch, in that order.
So first let me call on George Terwilliger, III. He is a
partner
with the Washington law firm of White and Case, did his
undergraduate work at Seton Hall University and graduated from
the Antioch School of Law. Prior to his tenure at White and
Case, he was the Deputy Attorney General at the Justice
Department from 1991 to 1992. In the first Bush Administration
he also served as a Federal prosecutor for over 10 years. As a
private practitioner, he has represented the interests of major
clients in civil and criminal proceedings.
Gentlemen, we are going to try to keep your testimony to
the 5 minutes because many of us, there are going to be a lot
of questions and we have to break by 1 o'clock. So if you could
indulge us with that, we would appreciate it.
Mr. Terwilliger.
STATEMENT OF GEORGE J. TERWILLIGER III, PARTNER, WHITE AND
CASE, WASHINGTON, D.C., AND FORMER DEPUTY ATTORNEY GENERAL
Mr. Terwilliger. Thank you, Mr. Chairman, Senator Hatch,
members of the Committee. I thank you for asking me to join
your discussion of the issues of law and policy concerning the
extraordinary crisis that is before the nation today.
I too am a strong believer in the value of responsible
congressional oversight, and that necessarily involves being
properly informed, and I am honored that you have asked me to
try to assist the Committee today.
I appreciate the introduction, Mr. Chairman. I will skip my
background, except to say that during my government service I
was involved in investigating or prosecuting several terrorism
cases and I supervised the conduct of others, working very
closely with the FBI and other law enforcement and intelligence
agencies both here and in foreign countries. During the Persian
Gulf crisis I had the lead responsibility for the Justice
Department's counter-terrorism program and represented the
Department at the National Security Council.
Since leaving government service in 1993 I have
participated in a number of symposia and national security
exercises related to terrorism. Most recently I participated in
the mock role of the Attorney General in the Dark Winter
Bioterrorism exercise at Andrews Air Force Base. In that
exercise, our mock National Security Council, under the
leadership of former Senator Sam Nunn, had a sobering
experience dealing with what is now a not-so-futuristic
outbreak of smallpox due to a bioterrorism incident.
As a result of my work in both criminal justice and
intelligence matters over the years, I offer one simple
conclusion for your consideration. The most sound viable
defense against terrorism is the collection and analysis of
intelligence sufficient to ensure the preemption of terrorist
activities. We simply cannot lock down the country so as to
secure it from terrorism without inflicting unacceptable levels
of harm to individual liberties and to the stream of commerce.
To be sure, there are many other aspects of a comprehensive
counter-terrorism program, including immigration enforcement as
well as criminal investigations and prosecution. Prosecutors
and investigators in Washington, New York and elsewhere have
done an outstanding job of investigating and prosecuting
terrorism cases. However, we are now in a state of war. This is
not just another criminal case to be investigated. In this war,
a rigorous intelligence program will permit us to triumph by
identifying whom and what groups represent danger. All of the
intelligence needed to assess their vulnerabilities and
undertake preemptive acts cannot, and very well should not, be
obtained solely through the criminal justice system,. In fact
it would be a mistake in my judgment to provide law enforcement
generally with the broad powers that may be necessary to the
more specific and limited counter-terrorism intelligence
mission. Requiring that all terrorists be tried in the criminal
justice system with its expansive rights providing defendants
information from the government's investigative files, is
counterintuitive because it may compromise the long-term
intelligence goals necessary to preempt terrorist violence.
Because of the importance and value of intelligence to
victory, we must utilize all lawful means to promote its
collection, preservation, analysis and appropriate sharing. For
example, the use of military tribunals to adjudicate the
responsibility of unlawful belligerants for so-called war
crimes is an exercise of constitutional authority clearly
supported by Supreme Court precedent, and deeply rooted in the
law of civilized nations. How and when such tribunals are best
used is a decision for the Executive as Commander-in-Chief and
as part of directing the military campaign of national defense.
Using military tribunals to adjudicate individual
responsibility for acts of war against our civilian population
is an important option. These lawful procedures may be critical
to the government in both providing a fair adjudication and
protecting the sensitive sources and methods by which relevant
evidence to be presented in the tribunal proceedings is
obtained. That, in turn, can preserve our ability to collect
and use the intelligence necessary to win the war. For this
reason, as well as several others, the President's carefully
drawn Order providing the option to use such tribunals, is a
wise choice.
The use of tribunals characterized by fair and reasonable
procedures is consistent with our national commitment to the
rule of law. Concerns that military tribunals somehow take away
civil liberties or bypass the civil justice system are
unfounded. One can understand that some, perhaps not having
fully considered the lawful authority for the use of these
tribunals, might initially harbor such concerns. This is
understandable, given that a state of war is itself an unusual
circumstance, and that we have not before faced a foreign
threat of the magnitude and nature on our home soil that we do
now. On reflection, I hope that responsible analysis will lead
to an understanding that responsibility for war crimes is not a
matter of civil justice, that military tribunals have been
lawfully and successfully used throughout history, that
tribunals can indeed be fair, and that preservation of sources
and methods by which information, including evidence of
responsibility for war crimes is obtained, is vital to victory.
The key consideration here is the use of existing lawful
authority to good effect. Lawful procedures are meant to be
used, and used aggressively in times of peril. Today we face
the presence of infiltrators in our midst who are prepared to
kill and destroy indiscriminately, even at the cost of their
own lives. That is a harsh and ugly reality. Dealing with that
reality is not an option. It is the responsibility of
government to provide for the national defense by determining
who embodies this threat and capability and rooting them out.
The survival of the freedoms we cherish, for which many prior
generations have paid dearly in blood, depends on our success.
Truly, the greatest threat to our civil liberties is failure in
the mission to secure America from terrorist violence.
Mr. Chairman, I would ask to submit the balance of my
statement that I have given to the Committee in writing for the
record. Thank you.
Senator Schumer. Without objection it will be so submitted.
[The prepared statement of Mr. Terwilliger follows:]
Statement of George J. Terwilliger III, Partner, White and Case,
Washington, D.C., and Former Deputy Attorney General
Mr. Chairman, Senator Hatch and members of the Committee. Thank you
for asking me to join your discussion of issues of law and policy
concerning the extraordinary crisis before the Nation today. I am a
strong believer in the value of responsible congressional oversight of
the Executive Branch. Oversight necessarily involves being properly
informed, and I am honored to try to assist the Committee today.
I am currently a partner in the Washington, D.C. office of White &
Case, an international law firm. Because I represent corporations and
other institutions that face government inquiries, I see the exercise
of significant government powers daily. Previously, I was privileged to
serve in the Justice Department for fifteen years, including as the
Deputy Attorney General of the United States in the Administration of
President George Herbert Walker Bush and as United States Attorney in
Vermont appointed by President Reagan. For eight years prior to that I
was an Assistant United States Attorney both here in Washington and in
Vermont. During my government service I investigated or prosecuted
several terrorism cases and supervised the conduct of others. I worked
very closely with the FBI and other law enforcement and intelligence
agencies, both here and in foreign countries. During the Persian Gulf
crisis, I had
lead responsibility for the Justice Department's counter-terrorism
program and represented the Department at the National Security Council
counter-terrorism inter-agency working group.
Since leaving government service in 1993, I have participated in a
number of symposia and national security exercises related to
terrorism. Most recently, I participated in the mock role of the
Attorney General in ``The Dark Winter'' bio-terrorism exercise at
Andrews Air Force base. In that exercise, our mock National Security
Council, under the leadership of former Senator Sam Nunn, had a
sobering experience dealing with a now not so futuristic outbreak of
smallpox.
As a result of work in both criminal justice and intelligence
matters over the years, I offer one, simple conclusion for your
consideration:
The most sound, viable defense against terrorism is the collection
and analysis of intelligence sufficient to ensure the preemption of
terrorist activities.
We cannot ``lock down'' the country so as to secure it from
terrorism without inflicting unacceptable harm to individual liberties
and the stream of commerce. To be sure, there are many other aspects of
a comprehensive counter-terrorism program. These include immigration
enforcement, as well as criminal investigations and prosecution.
Prosecutors and investigators in Washington, New York and elsewhere
have done an outstanding job investigating and prosecuting terrorism
cases. However, we are now in a state of war. This is not just another
criminal case to be investigated. In this war, a rigorous intelligence
program will permit us to triumph by identifying whom and what groups
represent danger. All the intelligence needed to assess their
vulnerabilities and undertake preemptive acts cannot, and very well
should not, be obtained solely through the criminal justice system. In
fact, it would be a mistake, in my judgment, to provide law enforcement
generally with the broad powers that may be necessary to the more
specific and limited counter-terrorism intelligence mission. Requiring
that all terrorists be tried in the criminal justice system, with its
expansive rights providing defendants information from the government's
investigative files, is counter-intuitive because it may compromise the
long-term intelligence goals necessary to preempt terrorist violence.
Because of the importance and value of intelligence to victory, we
must utilize all lawful means to promote its collection, preservation,
analysis and appropriate sharing. For example, the use of military
tribunals to adjudicate the responsibility of ``unlawful belligerents''
for so-called ``war crimes'' is an exercise of constitutional
authority, clearly supported by Supreme Court precedent and deeply
rooted in the law of civilized nations. How and when such tribunals are
best used is a decision for the Executive as Commander in Chief and
part of directing the military campaign of national defense.
Using military tribunals to adjudicate individual responsibility
for acts of war against our civilian population is an important option.
These lawful procedures may be critical to the government in both
providing a fair adjudication and protecting the sensitive sources and
methods by which relevant evidence to be presented in the tribunal
proceedings is obtained. That, in turn, can preserve our ability to
collect and use the intelligence necessary to win the war. For this
reason, as well as several others, the President's carefully drawn
Order providing the option to use such tribunals is a wise choice.
The use of tribunals characterized by fair and reasonable
procedures is consistent with our national commitment to the rule of
law. Concerns that military tribunals somehow take away civil liberties
or bypass the civil justice system are unfounded. One can understand
that some, perhaps not having fully considered the lawful authority for
the use of tribunals, might initially harbor such concerns. This is
understandable, given that the state of war is itself an unusual
circumstance, and that we have not before faced a foreign threat of
this magnitude and nature on . our home soil. On reflection, though, I
hope that responsible analysis will lead to an understanding that:
Responsibility for war crimes is not a matter of civil justice;
Military tribunals have been lawfully and successfully used
throughout our history;
Tribunals can be fair; and
Preservation of sources and methods by which information,
including evidence of responsibility for war crimes, is
obtained is vital to victory;
Until we can establish the intelligence necessary to preempt
terrorism reliably, we need to use all lawful means to prevent further
acts of terrorist violence. This violence has the real and apparent
present ability to kill thousands of innocent men, woman and children
here in the United States. It is apparent that, in the judgment of
those with awesome responsibility to prevent such attacks now,
aggressive enforcement of immigration and other laws is necessary. In
deference to their judgment, I support that vigorous enforcement.
Simply because there is the danger of abuse, we should not assume that
abuse is occurring. Rather, common sense suggests that we should
presume good faith unless and until circumstances indicate otherwise.
If the prevention mission and renewed vigor in intelligence gathering
renders it appropriate, in the judgment of responsible officials, to
seek interviews with 5,000 people, then I support that too. These are
not easy judgments and I respect the burden, responsibility and
accountability that attends to making them.
The key consideration here is the use of existing lawful authority
to good effect. Lawful procedures are meant to be used-and used
aggressively in times of peril. Today we face the presence of
infiltrators in our midst who are prepared to kill and destroy
indiscriminately, even at the cost of their own lives. That is a harsh
and ugly reality. Dealing with this is not an option. It is the
responsibility of government to provide for the national defense by
determining who embodies this threat and capability, and rooting them
out. The survival of the freedoms we cherish, for which many prior
generations have paid dearly in blood, depends on our success. Truly,
the greatest threat to our civil liberties is failure in the mission to
secure America from terrorist violence. Thank you.
Senator Schumer. Our next witness is Professor Laurence
Tribe. He is the Ralph S. Tyler, Jr. Professor of
Constitutional Law at Harvard Law School. He graduated from
Harvard College, Harvard Law School, holds many honorary
degrees. Before joining the Harvard faculty in 1968 he clerked
for Justice Matthew Tobriner at the California Supreme Court
and for Supreme Court Justice Potter Stewart. Professor Tribe
has published several books and numerous articles, and he has
been the lead counsel in over 30 Supreme Court cases.
Thank you for being here, Professor Tribe. Your entire
statement will be read into the record.
STATEMENT OF LAURENCE H. TRIBE, TYLER PROFESSOR OF
CONSTITUTIONAL LAW, HARVARD LAW SCHOOL, CAMBRIDGE,
MASSACHUSETTS
Mr. Tribe. Thank you. And it is certainly an honor to be
here on a very important occasion.
I want to say just at the outset that there are a great
many things that have been said by Mr. Terwilliger and by
Ambassador Prosper that I think no one could disagree with. I
certainly agree that al Qaeda is waging an unlawful war and a
monstrous one at that, that we do not need to bring Mr. bin
Laden or other al Qaeda leaders to the United States for trial.
I agree that we need not rely on international tribunals. They
are time consuming. It is extraordinarily difficult to put them
together. I agree that military commissions are well founded in
our history, and that they do not, per se, violate the
Constitution. I agree indeed that whatever you call them,
whether military commissions or tribunals, it is not even
necessary under the Constitution that they necessarily follow
all of the rules of evidence that are followed including the
jot and tittle of the hearsay rule in the courts martial. I
think Ambassador Prosper was eloquent at explaining why in a
wartime situation, when the entire world is a theater of war
and a crime scene, it would be ludicrous to demand exactly the
same kind of evidence. I also agree that circumstances involved
in these trials may require extraordinary measures to protect
the anonymity of the jurors if there are to be jurors, that is
extraordinarily hard to do. Sequestering them, I think as
Senator Hatch points out, is not a solution. There they are, in
some hotel, which then might get blown up. Following them home,
which is what some of these terrorists would do, would take
care of the problem from their point of view, but not
unfortunately from that of the jurors. So I think you would
have to be kind of pigheaded not to recognize that insisting on
the ordinary rules, doing business as usual always in the civil
courts or those like it, indeed always just like courts
martial, would be too much. I agree with all of that.
I agree indeed that military commissions need not be held
in secret, and I do not think that the President's Order need
be read to require secrecy, although I think a little bit of
creative reading is required to tailor it down the way it has
been tailored down to say that closure will occur only for very
limited and important purposes. I would love to see it whittled
down that way by Congress if not by the Executive Branch.
I am not sure I agree with the statement of Ambassador
Prosper that military commissions need not be under command
influence. I would like to believe that, but I do not know that
the whole world will. And I know one thing for sure, the appeal
process provided in Section 4(c)(8) of this order is totally
under command influence. It is an appeal to the Secretary of
Defense if the President wants to let Donald Rumsfeld in on it,
but otherwise the President and the President alone decides
what conviction will be upheld and what sentence will be
upheld. So one thing I think that ought to be done is a
provision by Congress to insist on at least a limited appeal to
the Court of Military Justice or to some other independent body
that would mirror certiorari review in the U.S. Supreme Court.
I also think that Senator Specter's concern about the
preclusive effect of the section that says ``no judicial
review'' would be a practical concern if the White House
counsel had not stated that he does not read it that way
because in the Quirin case the U.S. Supreme Court, dealing with
identical language from FDR, in effect ignored it and allowed
habeas review. I wish the Orwellian technique, however, of
saying one thing and meaning another were not so common in
Washington, and I do not think it is monopolized by any party
or by any branch of the government.
I begin to seriously disagree on just two points. The first
proposition is that these military commissions are now amply
authorized and that you do not need anything more from
Congress. I think Senator Durbin was right in pointing out that
the joint force authorization resolution authorized the use of
force for terrorist groups and terrorist activities directly
linked to September 11. The President's Order manifestly goes
beyond that. I think the Congress should authorize going beyond
that.
Secondly, I think one cannot find in the language of 10
U.S. Code Sections 821 and 836, in the Uniform Code of Military
Justice, direct authorization for military commissions. What
that really does say is that the rules for courts martial do
not preempt the possible use of military commissions and that
they give the President the power, when military commissions
are authorized, to promulgate rules. But the question is: are
they really authorized?
Now, one point of view, Senator Hatch expressed it as ably
as anyone could, is that the President in his Commander-in-
Chief power can do it, even without congressional
authorization. That is a question the Supreme Court
deliberately left open in Ex Parte Quirin in 1942. It remains
open. I would rather not see a cloud hang over convictions and
sentences entered by these military commissions because of a
question left open by the Supreme Court. I would rather see
direct authorization of a limited use of military commissions
with protections by habeas.
The other point that I do not really agree with is that the
President's Order is not really an order. It is again not what
it says it is. It is merely an announcement that we are going
to cook up something in the Department of Defense. It reminds
me of something that--when I was a kid--my mother used to say,
``Worry now, letter to follow.'' Although we are now told in
this Order that something may be cooking, we'll see what it is
later. But the fact is, that this is an Order. It makes
findings. Section 3 says, ``Any individual subject to this
Order shall be detained'', shall be tried in certain ways. So I
do not think it is an answer to say that we do not know all the
details. We do know now that there is an Order broader than the
joint authorization by Congress, an Order that has a cloud over
it because I think such military commissions need congressional
authorization, or at least that is an open question. And I
think the open questions are questions that should be resolved
not unilaterally by the Executive Branch but by a collaborative
process in which this branch owns up to its important
responsibility. The President, as Commander-in-Chief--and thank
goodness this is so--has a single-minded desire to pursue
certain goals here. We all share those goals in a broad way.
But Congress alone can look over the landscape at all of the
separate pieces of what the Attorney General is putting in
place, and can put some reasonable curbs on it and a solid
platform beneath it. Thank you.
[The prepared statement of Mr. Tribe follows:]
Statement of Professor Laurence Tribe, Tyler Professor of
Constitutional Law, Harvard Law School
Mr. Chairman, Members of the Committee:
I am honored by the Committee's request that I testify at this very
important hearing on the role Congress can and should play in our
shared national effort to defeat global terrorism without inadvertently
succumbing to our own reign of terror.
Although many of our constitutional freedoms would be rendered
meaningless without freedom from terrorist attack, they may be equally
threatened by undue governmental limitations and intrusions imposed in
the elusive pursuit of national security. The choice we face is not
that of liberty versus security. Our challenge is to secure the
liberties of all against the threats emanating from all sources--the
tyranny and terror of oppressive government no less than the tyranny of
terrorism.
In the days following September 11, our journalists, academics, and
citizens wondered whether our government and our courts would have the
wisdom and courage to avoid the terrible mistake they made in ordering
and ratifying the detention of over 70,000 Japanese Americans in
internment camps during the Second World War.\1\ Liberty from
overreaching governmental power was central to the freedoms identified
by President Bush in his address to Congress on September 20 as the
very target of the terrorist attack.\2\ I share with the President the
belief that civil liberty includes liberty from terrorism. I hope we
share the belief that the war against terrorism does not require us to
sacrifice constitutional principles on the altar of public safety, We
know what is the result of that sacrifice--in Korematsu v. United
States, 323 U.S. 214 (1944), the Supreme Court permitted the government
to intern American citizens purely on the basis of their ancestry in
the name of national security. But liberty, properly understood,
requires both protection from government and protection by
government.\3\ We must not permit ourselves to repeat the same mistake
and, by pitting liberty against security, erase our freedom and
equality in security's name. We are at the ``Korematsu'' crossroads.
Congress can determine which path we take. And Congress has a special
responsibility to act. No other branch of government can be relied on
to perform that task as well. Congress alone can see the problem whole;
courts necessarily see but one case at a time and in wartime tend to
defer to the executive's greater knowledge and expertise,\4\ and the
executive tends to be blinded by the single-minded requirements of the
military mission.
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\1\ See, e.g., David J. Garrow, Aftermath: The Rule of Fear;
Another Lesson From World War II Internments, N.Y. Times, Sept. 23,
2001 Sec. 4 at 6.
\2\ ``They hate our freedoms: Our freedom of religion, our freedom
of speech, our freedom to vote and assemble and disagree with each
other. . . .These terrorists kill not merely to end lives but to
disrupt and end a way of life. With every atrocity, they hope that
America grows fearful.'' Text of President Bush's Sept. 20 Speech As
Prepared For Delivery to Congress, U.S. Newswire, September 20, 2001.
\3\ The current Supreme Court has been more reluctant than some
believe is appropriate to hold government responsible for private
violence--even violence that it easily have prevent. See e.g., DeShaney
v. Winnebago Cty, 489 US 189 (1989). Ironically, it may be only an
affirmative vision of government, capable of helping people attain
decent levels of education, health, nutrition, shelter, and physical
security in far-flung areas of the globe, that can do much in the long
run to change the conditions in which fanaticism finds fertile breeding
grounds.
\4\ I develop these points in an article published in the current
issue of The New Republic (Dec. 10, 2001), ``Trial by Fury,'' at pp.
18-19.
---------------------------------------------------------------------------
The real problem is not how much liberty to sacrifice to buy
security; it is how properly to achieve freedom from the terrorism of
all fanatics, foreign or domestic, who would challenge the living
fabric of our society, including the constitutional compact that unites
and gives it purpose. Fanatics have attacked the Pentagon and the
Federal Building in Oklahoma and have toppled the towers of the World
Trade Center, massacring thousands of innocent people. We must not
allow them to tear down as well the structure of government,
constituted by the separation of powers, that makes our legal and
political system--and the liberties it embodies and protects--
altogether unique. Our response to each threat must remain the same: a
steadfast refusal to succumb to any attempt to force upon us a will,
and a way of life, that offend the freedoms at our country's core.
These freedoms, embodied in our Constitution, are our security against
the fanatics' new tyranny of terror. To assert them here is to win at
home the war we are waging so effectively abroad.
In the wake of the terrorist attack on the United States, the
President has acted to ensure that the perpetrators of this crime
against humanity are brought to justice--or, as he promised in his
address to Congress, to bring justice to the terrorists. The terms of
the November 13 Military Order represent the most dramatic Presidential
step thus far in our effort to elaborate just what the content of this
American justice is to be. The ostensible goal of the military
tribunals to be instituted pursuant to that Order is to permit a ``full
and fair trial,'' Sec. 4(c)(2), while at the same time ensuring that
the process is as expeditious and secure as possible. The need to
provide sooner rather than later for the detention and trial of those
responsible for the terrorist attacks of September 11 is apparent from
the rapid pace of our, and our allies', military victories in
Afghanistan. To Congress falls the task of charting our next steps by
giving content to a vision of justice that responds fairly yet firmly
to the fanatics' threat to our nation.
Congress alone can avoid the constitutional infirmities that plague
the Military Tribunal Order of November 13 and must do so not only to
protect the constitutional rights of those threatened by that Order but
also to shield any resulting convictions from judicial reversal on
appeal--convictions which could properly be obtained by military
tribunals constituted under a more narrowly drawn congressional
statute.
As of two days ago, Secretary of Defense Rumsfeld had wisely sought
to describe the Military Order issued by President Bush on November 13
as a blueprint made public, ``so that. . .work could begin'' designing
the military tribunals and settling their jurisdiction and procedures.
He insisted that the Order was announced simply because, in his words,
``It may be that we will need that option'' (NBC, ``Meet the Press,''
Dec. 2, 2001). This is not, however, a blueprint that the United States
Government is free to follow. The structure of executive power
instituted by the November 13 Order is so constitutionally flawed at
its base that it cannot be saved by nimble TV spin or by altering a
detail here and a detail there.
As promulgated, the Military Order, by its express terms, is a
direct threat to some 20 million lawful resident aliens in the United
States. Almost any act by a resident alien, anywhere, could in some
circumstances lead the President to believe the alien has or had some
form of involvement with a terrorist organization.\5\ The resident
alien need not even know that he was involved with terrorists. All that
is required is ``aid[ing] or abet[ing]'' terrorists ``or acts in
preparation [ ]for'' terrorism. Hiring a car for a friend could be a
terrorist act subject to trial by military tribunal, if it turned out
that your friend is--or was--a terrorist. How many contributors to the
African National Congress who supported sanctions against South Africa
under apartheid in the face of government opposition ``ha[d] as their
aim to cause[ ] injury or adverse effects on. . .United States. .
.foreign policy. . .''? Sec. 2(a)(1)(ii). How many supporters of Irish
nationalism contributed, for reasons of political conscience, funds
that ``aided or abetted'' the Irish Republican Army before it began
disarming on September 11?\6\ The Military Order decrees that any such
supporter might at any moment be turned over to the Defense Department
for trial by a military tribunal on the mere stroke of the President's
pen certifying that the President had ``reason to believe'' that the
named individual was, or at one time had been, helping or harboring
some organization that the President saw fit to regard as an example of
``international terrorism.''
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\5\ It is, for example, difficult to know exactly what sort of act
``threatens'' an ``injury to or adverse effects on the United States,
its citizens, national security, foreign policy, or economy.''
Sec. 2(a)(1)(ii). Almost any offense involving money, from
counterfeiting currency to holding up a bank at gunpoint, to
threatening to blow the bank up, could come under this description.
\6\ Would the Senate itself be culpable for having ``knowingly
harbored'' Gerry Adams? Sec. 2(a)(1)(ii).
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Of course, as Secretary Rumsfeld must have recognized, any such
threat, made in a manner that necessarily hangs like a Sword of
Damocles over millions of lawful residents of this nation, cannot
possibly be defended under our Constitution.\7\ As Justice Marshall
once wisely observed, such a sword does its work by the mere fact that
it ``hangs--not that it drops.'' Arnett v. Kennedy, 416 U.S. 134, 231
(1974) (Marshall, J., dissenting). The Secretary's attempt to wish the
sword away--to persuade us all that, until we feel the edge of its
blade upon our necks, we need not worry--is no substitute for replacing
that sword with a solid framework for the judicious use of executive
force in bringing justice to the terrorists.
---------------------------------------------------------------------------
\7\ The order as promulgated on November 13 stands utterly
unprecedented in American history and is quite impossible to justify in
constitutional terms. Unlike, for example, President Lincoln's use of
military tribunals to supplant the civil courts, pursuant to
congressional legislation enacted right after the South tried to secede
from the Union, see Duncan v. Kahanamoku, 327 U.S. 304, 323 (1946), and
President Roosevelt's use of military tribunals to try and execute the
Nazi saboteurs who donned civilian garb to blend with the American
populace they sought to injure, Ex parte Quirin, 317 U.S. 1, 25-27, 29,
35, 42 (1942) (underscoring the formal declaration of war that had
triggered prior statutory authorization of precisely such military
tribunals in wartime and leaving open the question of presidential
power to create such commissions without leave of Congress, the
Military Order lacks (thus far at least) any congressional
authorization. Certainly, it cannot be justified by Congress's
September 18 Use of Force Resolution., Pub. L. No. 107-40, 115 Stat.
224. That resolution authorized ``the President. . . .to use all
necessary and appropriate force against those . . .he determines
planned, authorized, committed, or aided'' entities that perpetrated
the atrocities of ``September 11, 2001'' ``or harbored'' those who had
done so. Nothing in the Resolution authorized creating any system
whatsoever of anti-terrorist tribunals, a quintessentially legislative
act. Moreover, it authorized nothing beyond ``use of force'' in
pursuing and subduing those responsible for the September 11 attacks to
prevent future acts of international terrorism by them against the U.S.
Yet the Military Order extends to all groups that have ``engaged in,
aided or abetted, or conspired to commit, acts of international
terrorism,'' Sec. (a)(1)(ii), including many groups doubtless
uninvolved in the September 11 attack even by the most capacious
definition of involvement.
---------------------------------------------------------------------------
The next steps are for Congress to take--not in the direction of so
flawed a blueprint, but towards a constitutionally sound regime that
will withstand judicial review--if it hopes to obtain swiftly and to
defend from embarrassing judicial invalidation, convictions by military
tribunal of the leaders of Al Qaeda, or indeed of anyone else. For it
is not within our government's power simply to threaten to detain and
commit to a military tribunal or commission anyone who associates with
agents of terror. After all, even today's hardly ``liberal'' Supreme
Court not long ago held that the City of Chicago's response to terror
gangs \8\--enacting legislation that threatened to arrest and prosecute
anyone who, loitering near a known gang member, did not disperse upon
police command--was flatly unconstitutional in essentially delegating
to those who enforce the law the vaguely bounded power to make it on
the spot. City of Chicago v. Morales, 527 U.S. 41, 62-63 (1999).
---------------------------------------------------------------------------
\8\ Justice Thomas explicitly characterized the gangs as quasi-
terrorists, describing them as ``fill[ing] the daily lives of many of
our poorest and most vulnerable citizens with. . .terror. . ., often
relegating them to the status of prisoners in their own homes.'' City
of Chicago v. Morales, 527 U.S. 41, 99 (1999) (dissenting opinion).
---------------------------------------------------------------------------
The November 13 Military Tribunal Order is the same sort of
response and has the same kind of infirmity. Like terrorism itself even
though far less violently, a threat of arrest and possible conviction,
even in our fully protective civil courts, for offenses not clearly
defined in advance but to be defined by the executive as events unfold,
instills fear far beyond the ground zero of its actual implementation.
The Supreme Court in Morales recognized as much by striking down on its
face the ordinance that announced that threat and refusing to wait
until particular individuals were convicted or even charged. Id. at 55.
The judicial response to the November 13 Order, despite Bush
administration efforts to describe it as more like a mere press
release, than a real order, could be even harsher. For at least the
Chicago threat carried with it the assurance that nobody would be
arrested pursuant to its terms without first receiving a clear and
individualized warning--and that anyone could assuredly avoid arrest
and prosecution simply by heeding that warning and dispersing when
ordered to do so. The November 13 Order is a threat that carries no
such corresponding assurance: all those subject to it are exposed to
prosecution, conviction, and possible execution for conduct they may
have engaged in years ago--and the Order suffers from the compounding
vice that it violates the separation of powers required by our
Constitution of the federal government (although not of states and
municipalities) by proceeding without the congressional authorization
clearly required for any creation of a system of trials, military or
otherwise.\9\ It installs the executive branch as lawgiver as well as
law enforcer and law interpreter and applier,\10\ leaving to the
executive branch the specification, by rules promulgated as it goes
along, of what might constitute ``terrorism'' or a ``terrorist'' group,
what would amount to ``aiding and abetting'' or ``harboring'' such
terrorism or such a group, and a host of other specifics left to the
imagination of the fearful observer. This ``blending of executive,
legislative, and judicial powers in one person or even in one branch of
the Government is ordinarily regarded as the very acme of absolutism.''
Reid v. Covert, 354 U.S. 2, 11 (1957); Federalist No. 47 (James
Madison).
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\9\ The November 13 Military Order goes far beyond the use of force
authorized by Congress, which declared that the September 11 attacks
``pose[d] an unusual and extraordinary threat to the national security
and foreign policy of the United States'' and granted the President
discretion to use ``all necessary and appropriate force against'' all
entities--whether foreign or domestic--only so long as ``he determines
[that they] planned, authorized, committed, or aided the terrorist
attacks that occurred on ``September 11, 2001'' (Emphasis added) and so
long as he does no ``in order to prevent future acts of international
terrorism against the United States by such [entities].'' Joint
Resolution to Authorize the Use of United States Armed Forces Against
Those Resolution''), Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18,
2001). The President's Military Tribunal Order applies to a potentially
unlimited class of individuals, completely at the discretion of the
President. The White House Counsel inadvertently conceded almost as
much when he wrote several day ago that, ``[u]nder the order, the
president will refer to military commissions only noncitizens who are
members or active supporters of Al Qaeda or other international
terrorist organizations targeting the United States.'' Alberto R.
Gonzales, ``Martial Justice, Full and Fair,'' The New York TImes, Nov.
30, 2001, Sec. A at 27 (emphasis added); see also Military Order
Sec. 2(a)(1)(ii) (referring anyone who has ``engaged in. . .acts of
international terrorism'' to the military commissions).
Although the President acting in concert with Congress, has the
power to create certain military tribunals, Ex parte Milligan 71, U.S.
2, 136 (1866), he does not posses an independent power to create a
system of such tribunals on his own but may only ``carry into effect
all laws passed by Congress. . .defining and punishing offences against
the law of nations, including those which pertain to the conduct of
war.'' Ex parte Quirin 317 U.S. 1, 10 (1942). In Ex parte Quirin,
mistakenly invoked by the White House as precedent, the military
tribunal's jurisdiction was ``explicitly provided'' by Congress and was
limited to ``offenders or offenses against the law of war.'' Id. at 11;
see also In re Yamashita, 327 U.S. 1, 16 (1946) (``Congress, in the
exercise of its constitutional power to define and punish offenses
against the law of nations, of which the law of war is a part, has
recognized the `military commission' appointed by military command, as
it had previously existed in United States army practice, as an
appropriate tribunal for the trial and punishment of offenses against
the law of war.'').
\10\ The Order confuses the role of legislator, see Sec. Sec. 4(b)
and 6(a) (power to promulgate ``orders and regulations'' necessary for
commission); policeman, see Sec. 3 (power to ``detain[] at an
appropriate location''); prosecutor, see Sec. Sec. 2 (``I determine
from time to time in writing'' who is a terrorist subject to the
commissions) and 4(c)(5) (Secretary of Defense ``designate[s]'' person
to ``conduct. . .prosecution''); judge see Sec. 4(c)(2); and court of
appeal, see Sec. 4(c)(8) (``review and final decision by me or by the
Secretary of Defense if so designated by me for that purpose''),
concentrating all these powers in the executive branch. In fact, the
President himself is empowered to take on both the role of prosecutor,
in determining who is to be subject to the tribunal under Sec. 2(a),
and of ultimate court of appeal under Sec. 4(c)(8).
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Several days before Secretary Rumsfeld's attempted recasting of the
November 13 Order, White House Counsel Alberto Gonzales opined in the
pages of The New York Times that the order would not reach any but
``foreign enemy war criminals,'' Alberto R. Gonzales, ``Martial
Justice, Full and Fair,'' The New York Times, Nov. 30, 2001, Sec. A at
27,\11\ and that each military tribunal's proceedings, which the Order
had said could be conducted in secret at the President's option,
Sec. 4(c)(4), would of course be conducted in the open with exceptions
only for ``the urgent needs of national security.'' It is, to be sure,
nice to have White House Counsel's promise that this is so, but ``trust
me'' has never been enough for the American people. Our whole
constitutional tradition is predicated on the proposition that not even
the best intentions of the most benevolent leaders can substitute for
the positive legal protection and preservation of freedom. Ours is ``a
government of laws, not men.''\12\ It is offensive to our founding
values to have the powers of drafting the laws, and then prosecuting
and adjudicating violations of those laws, embodied in one agency--
here, one man. ``Such blending of functions in one branch of the
Government is the objectionable thing which the draftsmen of the
Constitution endeavored to prevent by providing for the separation of
governmental powers.'' Reid v. Covert, 354 U.S. 2, 38-39 (1957).\13\
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\11\ ``[I]t does not cover United States citizens or enemy soldiers
abiding by the laws of war. Under the order, the president will refer
to military commissions only noncitizens who are members or active
supporters of Al Qaeda or other international terrorist organizations
targeting the United States.'' Id. It is true that the Order as written
applies ``only'' (some ``only''!) to ``any individual who is not a
United States citizen,''Sec. 2(a), but the Quirin decision upon which
the administration rests so heavily precisely refused to distinguish
between the rights of citizens and those of non-citizens in the context
of unlawful belligerency. Ex parte Quirin v, 317 U.S. 1, 15 (1942).
Thus, on its own announced theory, the government potentially possesses
the power to refer citizens who engage in terrorist acts to the
military commissions for ``trial'' and possible execution.
\12\ Usually attributed to John Adams.
\13\ In fact, the Supreme Court considered that ``[n]o graver
question was ever considered by this court, nor one which more nearly
concerns the rights of the whole people'' than whether a military
``tribunal [had] the legal power and authority to try and punish [a]
man'' ``arrested by the military power of the United States,
Imprisoned, and, on certain criminal charges preferred against him,
tried, convicted, and sentenced. . .by a military commission, organized
under the direction of the military commander.'' Ex parte Milligan 71
U.S. 2, 118-19 (1966). This is precisely the issue presented by the
President's Military Order, which contemplates ``det[ention] at an
appropriate location designated by the Secretary of Defense,''
Sec. 3(a), and ``tri[al] by military commission. . .and. . .punishment
in accordance with the penalties provided under applicable law,
including life imprisonment or death.'' Sec. 4(a).
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It is just not good enough for the executive branch to put a benign
spin on this Order and to assure the nation that it will not mean in
practice what it says on its face. Yet this is precisely what Mr.
Gonzales sought to do when he ``explained'' in The New York Times that
the Military Order's explicit bar of any judicial relief whatsoever for
any person detained and tried pursuant to it \14\ would, of course, not
mean what it said, inasmuch as the Supreme Court half a century ago had
refused to take identical language at face value in its Ex parte Quirin
decision condemning the Nazi submarine saboteurs to death--but only
after according them a judicial hearing of sorts.\15\ What seems
essential is less spin and more action--here, concrete legislative
action to build a sound but narrow legal platform on which to construct
the military tribunals and conduct the military trials that the
President believes may prove essential in extraordinary cases where our
civil justice system may be insufficient to the task of coping with the
terrorist threat that became manifest with the monstrous events of
September 11. That legal platform must make clear that its scope cannot
be extended (a) to American citizens; (b) to individuals linked,
however closely, to acts of terror wholly unrelated to September 11
(unless Congress affirmatively and expressly chooses to add such acts,
or the specific organizations responsible for them, to the list of
targets it empowers the President to pursue and try militarily); to
individuals not closely linked to a specific terrorist event whose
responsible agents Congress has authorized the President to pursue by
force and try by military tribunal; or to mere foot soldiers captured
on the field of battle and entitled, under the Geneva Convention, to
treatment as prisoners of war rather than as war criminals.
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\14\ ``(1) Military tribunals shall have exclusive jurisdiction
with respect to offenses by the individual; and (2) the individual
shall not be privileged to seek any remedy or maintain any proceeding,
directly or indirectly, or to have any such remedy or proceeding sought
on the individual's behalf, in (i) any court of the United States, or
any State thereof, (ii) any court of any foreign nation, or (iii) any
international tribunal.'' Sec. 7(b).
\15\ see Alberto R. Gonzales, supra note 8. Cf. George Orwell,
19894 (1949).
---------------------------------------------------------------------------
Substantive limits must be established by law to constrain on the
President's power to determine which aliens are to be subjected to the
jurisdiction of a military tribunal or commission, and procedural
guidelines must be established to ensure that defendants' due process
rights are protected by such commissions. Congress must set those
limits and draft those guidelines, presumably in consultation with the
President.
At the forefront of our new agenda abroad, at least so far, has
been an effort to help establish transparent, accountable, and
hopefully democratic institutions with which to govern Afghanistan. The
policy appears to rest upon the belief that democracy is the best check
on terrorist activity, which requires a culture of repressive
intolerance in order to thrive. Yet that same accountability must
prevail at home as well. We are in the end more, not less, secure when
we practice the democracy at home that we preach abroad.
The Military Order confronts Congress with two distinct problems to
resolve. The first is the set of substantive limitations to be placed
on the jurisdiction afforded military tribunals: who is to be subject
to the tribunals, and for what wrongs? The second is the set of
procedures that is to govern these tribunals. We must ensure the open
and fair hearings witnessed in ``A Few Good Men,'' not the kangaroo
court seen in ``Paths of Glory.'' It is especially troubling that even
our extant system of courts martial has been besmirched by careless
comparison with the far less protective military tribunals that the
order plainly contemplated. See William Glaberson, ``A Nation
Challenged: the Law; Tribunal v. Court-Martial: Matter of Perception,''
The New York Times, Dec. 2, 2001, Sec. 1B at 6 (``the proposed
tribunals are significantly different from courts-martial, [military]
lawyers say, adding that confusion between the two has distorted the
debate over the tribunals and unfairly denigrated military justice '').
Jurisdiction
1. As a preliminary matter, Congress should note that we already
have a system of justice under which to try terrorists: we successfully
tried in criminal court the last members of Al Qaeda who attempted to
bomb the World Trade Center. In the rush to convict and punish the
perpetrators of the attacks on the World Trade Center and the Pentagon,
it would be a mistake, although not necessarily a violation of the
Constitution, to rely on military courts as a substitute for the
intelligence agencies' ability to track terrorists and accumulate
convincing evidence of their activities. Using a court designed to
convict even when a weak case has been presented by the government--
using it, in fact, to cover the failures of the executive--is hardly
the way to fight terrorism in the long run.
Indeed, the entire plea for secrecy and anonymity--from concealing
from the accused and/or the public the identity and nature of the
witnesses and other sources behind the government's case, to keeping
confidential the methods of investigation employed by the government to
track down and identify the accused, to hiding the identity of jurors
and judges who might reasonably fear reprisal from an accused
terrorist's associates in terror who are still at large--can so easily
become a cover, whether deliberate or not, for ineptly unreliable or
otherwise unconscionable behavior by the executive, that it would seem
wise for Congress to institute some sort of independent check on the
President's assertion that the presumptively open and public civil
trial system, which has had to cope often with needs for witness
protection and informer anonymity and the like, is intrinsically ill-
adapted to the task at hand.
Congress's goal should therefore be to channel as many suspected
terrorists as feasible away from, rather than towards, military
tribunals. Among the reasons justifying a military tribunal will of
course be considerations of national security that may require closed
proceedings to protect classified information from dissemination;
concerns of overwhelming danger to the court, to jurors, or to
witnesses that might require secure proceedings of a sort precluded
even by the usual methods of witness or court protection; or
circumstances surrounding the accused's capture while prosecuting a
military action on behalf of an enemy nation or group in a manner that
allegedly violates the laws of war.
2. Although much of the current debate proceeds on the premise that
these two should be treated differently, where these reasons are
present there seems little principled basis to distinguish between an
unlawful belligerent who is a resident alien, blending in with and
hiding among the United States population, and one who is a non-
resident alien, openly engaging in warfare on United States civilians
from beyond our borders. Indeed, the reasons for favoring military
tribunals do not appear to distinguish between citizens and non-
citizens. As the Court held in Ex parte Quirin, 317 U.S. 1 (1942), when
a citizen disavows his homeland and sides with the enemy, he may become
an enemy belligerent. See Id., 317 U.S. at 16 (``Citizenship in the
United States of an enemy belligerent does not relieve him from the
consequences of a belligerency which is unlawful because in violation
of the law of war''). Indeed, being a traitor as well as an unlawful
belligerent, the citizen who wages such warfare on his homeland may
well be regarded as more culpable than the alien, not less.\16\
---------------------------------------------------------------------------
\16\ Congress is, however, free to exempt United States citizens
from trial by tribunal altogether: ``[O]ur law does not abolish
inherent distinctions recognized throughout the civilized world between
citizens and aliens, nor between aliens of friendly and of enemy
allegiance, nor between resident enemy allegiance, nor between resident
enemy aliens who have submitted themselves to our laws and nonresident
enemy aliens who at all times have remained with, and adhered to, enemy
governments''. Johnson v. Eisentrager, 339 U.S. 763, 769-770 (1950).
---------------------------------------------------------------------------
In sum, it seems wisest in practice to limit military tribunals--as
the Bush Administration has all but promised it would likely do in
practice--to a relatively small group of enemy alien leaders, captured
abroad, of terrorist groups clearly identified by Congress, and an even
smaller group of their colleagues who are reasonably believed to have
played similar roles while concealed among our people. In theory,
however, the two criteria essential to establishing military, as
opposed to civilian, jurisdiction should not rest upon any such
difference in status.
The first is that the person to be tried by a military tribunal or
commission must be an enemy, see Johnson v. Eisentrager, 339 U.S. 763,
776 (1950)--that is, someone acting at the behest of a nation or other
entity warring against the United States; the second is that the enemy
must be charged with unlawful belligerency, or any other established
offense against the laws of war, sufficiently serious to warrant such
disfavored treatment. See Ex parte Quirin, 317 U.S. at 11.
Strikingly, the November 13 Military Tribunal Order extends the
range of offenses that it subjects to military tribunals so as to
include ``any and all offenses triable by military commission,''
Sec. 4(a), not just those that offend the laws of war, based,
evidently, upon an unexplained finding that ``prevention of terrorists
attacks'' requires the detention for, and trial by, military
commissions not only ``for violations of the laws of war'' but also for
``violations of. . .other applicable laws,'' of all ``individuals
subject to this order,'' Sec. 1(e) (emphasis added). The law is
settled, however, that an alien may be subjected to trial by a military
tribunal only if he meets both of the criteria set forth above. See
Yamashita, 327 U.S. at 26. Even though military rule is ``properly
applied. . .on the theater of active military operations, where war
really prevails,'' Milligan, 71 U.S. at 127, trying a captured soldier
as a criminal for merely fighting in accord with the laws of war on
behalf of the nation or other entity he represents appears to be
universally condemned. Under the Geneva Convention and other
international instruments, such soldiers must be held as prisoners of
war, to be repatriated at the war's conclusion. This could pose a
problem in a case such as that of Taliban foot-soldiers, captured while
engaged in combat against the Northern Alliance, whom our military
leaders suspect of harboring, or working in close concert with, Al
Qaeda. Unless such combatants happen to be among Al Qaeda's leadership,
they are most unlikely to have been sufficiently responsible for that
group's terrorist acts to count as war criminals, but viewing them as
entitled to treatment as prisoners of war would seem to require their
repatriation in the eventually reconstituted Afghanistan, to Saudi
Arabia, to Pakistan, or to their mother country whatever it might be--
none of which nations might be willing to welcome them. Even though the
indefinite and potentially permanent detention of deportable aliens
residing in the United States may well be unconstitutional even if no
other nation will accept them, see Zadvydas v. Davis, 121 S. Ct. 2491,
2500-02 (2001), that protection does not seem to extend to ``aliens
outside our geographic borders,'' Id. at 2500 (and cases cited
therein), much less to enemy aliens outside those borders, so it may
well be that, since international law could hardly require the
admission of such captured enemies into the United States, there is no
alternative to their indefinite detention by the United States, at a
suitable place outside our borders, unless and until their repatriation
becomes possible.\17\
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\17\ Nor is the prospect of trying terrorists in international
tribunals a particularly promising one. As former Assistant Secretary
of State Harold H. Koh recently observed, ``As recent efforts to try
international crimes in Cambodia and Sierra Leone show, building new
tribunals from scratch is slow and expensive and requires arduous
negotiations. Geopolitical concerns in this case would predominate, and
the impartiality of the tribunal would inevitably be questions by some
in the Muslim world. These tribunals are preferable only when there is
no functioning court that could fairly and efficiently try the case, as
was the situation in the former Yugoslavia and in Rwanda,'' The New
York Times, November 23, 2001, Sec. A at 39 (``We Have the Right Courts
for Bin Laden'').
---------------------------------------------------------------------------
3. To enforce this basic jurisdictional boundary, Congress should
provide for some form of tribunal--it need not be an Article III court
in the first instance\18\--to review the President's threshold
assertion of military jurisdiction, and should provide as well for some
suitably expedited form of habeas corpus review in an Article III court
if the initial review was by some lesser power. See, e.g., H.R. 3162
(Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001) (signed into law October 26, 2001) Sec. 412(b) (providing
expedited habeas corpus review).\19\
---------------------------------------------------------------------------
\18\ This type of administrative solution parallels the manner in
which the immigration statutes provide for determination of whether an
alien fits a particular classification, while preserving habeas review
of non-discretionary decisions for Article III courts.
\19\ The provisions of the USA-PATRIOT Act also define, for
purposes of that Act, what constitutes ``engag[ing] in terrorist
activity'' and what organizations are terrorist. See Sec. Sec. 411
(a)(1)(F) & (G). Congress should consider tightening those definitions,
enacted there with great haste and vague enough to show the effects of
the rush, as part of its determination of the categories of individuals
who should be subject to trial by military tribunals.
---------------------------------------------------------------------------
4. In addition, of course, Congress would do well, acting under its
Article I, Sec. 8, ch. 10 power to ``define and punish. . .offences
against the law of nations,'' to define more precisely those violations
of the laws or customs of war which the military tribunals may
hear,\20\ and to specify or otherwise monitor the penalties to be
imposed. Punishments could perhaps be made proportionate to those meted
out under the Federal Sentencing Guidelines.
---------------------------------------------------------------------------
\20\ Under Article 3 of the International Tribunal for Yugoslavia,
for example, the following acts would subject a terrorist to military
jurisdiction:
(a) employment of poisonous weapons or other weapons calculated to
cause unnecessary suffering; (b) wanton destruction of cities, towns or
villages, or devastation not justified by military necessity; (c)
attack, or bombardment, by whatever means, of undefended towns,
villages, dwellings, or buildings; (d) seizure of, destruction or
willful damage done to institutions dedicated to religion, charity and
education, the arts and sciences, historic monuments and works of art
and science; (e) plunder of public or private property.
---------------------------------------------------------------------------
Procedure
5. Domestic law of course imposes due process safeguards on
military tribunals of every possible form. Thus, in Middendorf v.
Henry, 425 U.S. 25 (1976), the Court took note of the traditional
categorization of courts martial (general, special, and summary--i.e.,
non-adversarial.), and required Fifth Amendment due process protections
to be extended to a defendant even at the lowest (summary) of the three
levels of court martial.\21\ Id. at 43 (``plaintiffs, who have either
been convicted or are due to appear before a summary court-martial, may
be subjected to loss of liberty or property, and consequently are
entitled to the due process of law guaranteed by the Fifth
Amendment''). The two higher levels (general and special) are
adversarial, and accordingly require heightened due process safeguards.
---------------------------------------------------------------------------
\21\ General courts martial require ``a military judge and not less
than five members'' of the panel, and may impose capital sentences. 10
U.S.C. Sec. Sec. 816, 818. Special courts martial require three panel
members, and may not impose capital sentences. Id. at 816, 819. Summary
courts martial require only one panel member, may impose only minimal
sentences, and may be objected to by the accused, who may then received
trial by either special or general court martial Id. at 816, 820.
---------------------------------------------------------------------------
6. The court martial provisions of the Uniform Code of Military
Justice (UCMJ) provide the minimum procedural safeguards required by
military law, and may usefully be considered by Congress as setting a
template against which to measure possible legislative proposals for
creating new types of military tribunal.\22\ ``General courts-martial.
. .have jurisdiction to try any person who by the law of war is subject
to trial by a military tribunal and may adjudge any punishment
permitted by the law of war.'' 10 U.S.C. Sec. 818. General courts-
martial are, as noted, comprised of five judges. One of these must be a
military judge--unless the defendant waives this requirement. 10 U.S.C.
Sec. 816. At least one trained lawyer sits on the court, 10 U.S.C.
Sec. 826, and, absent exigencies of war, the accused is entitled to
counsel to defend him, Sec. 827; to know the charges proffered against
him, Sec. 830; to be free from compulsory self-incrimination, Sec. 831;
and to conduct a limited investigation of the facts surrounding the
charge, Sec. 832.
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\22\ To suggest that such new tribunals should be less protective
of the accused than are special and summary courts martial is to push
the floor of protection quite low indeed. The dearth of procedural
protections available at that floor is especially stark when compared
with what is available in other jurisdictions. For instance, the
Northern Ireland (Emergency Provisions) Act, 1996, permits trial of
terrorists by a three-judge appellate tribunal, and specifies the full
panoply of rights and procedures available. Of more immediate import
are the procedures, including civilian appeal, available to United
States military personnel in a court martial. See 10 U.S.C. 801 et.
seq.
---------------------------------------------------------------------------
7. A court martial also provides heightened protection for more
serious charges. Section 852 of the UCMJ ensures that a defendant may
be convicted of a crime punishable by death only where the commission's
vote is unanimous. Any death sentence must be unanimous as well. While
this would no doubt limit the number of death sentences that could be
imposed--and the number of convictions that could be obtained in cases
where that penalty was sought--if the military tribunals now being
established were to follow the court martial model, the prosecution
could keep the overall conviction rate from falling much by seeking a
life sentence, and from falling at all by seeking a term of years less
than life, which requires the same two-thirds vote that the November 13
Order would require. See Sec. 4(c)(6).
8. Suggestions that military tribunals must, either as a matter of
constitutional necessity or as a matter of sound international
diplomacy, follow evidentiary rules and burden-of-proof rules fully as
onerous to the prosecution, and protective of the accused, as apply in
ordinary criminal trials and in courts martial, have much to commend
them, but Congress may properly keep in mind that at least some of
those rules are designed mostly to protect lay jurors from being unduly
impressed by categories of evidence whose reliability those
inexperienced in such matters may overestimate, or unduly swayed by
emotional appeals for vengeance, and that the need for such rules may
be correspondingly reduced when trained professionals are the finders
of fact and law.
In addition, the classic requirement of proof beyond a reasonable
doubt is chosen to reflect the old adage that it is better to free 100
guilty men than to imprison, much less execute, one innocent--a
calculus that neither the Constitution, nor conventional morality,
necessarily imposes on government when the 100 guilty who are freed
belong to terrorist cells that slaughter innocent civilians, and may
well have access to chemical, biological, or even nuclear weapons. Due
process has been held, for example, to permit incarceration of
potentially indefinite duration of those found, upon proof by less than
the ``beyond reasonable doubt'' standard, to pose a grave danger to the
safety of others. See Addington v. Texas, 441 U.S. 418, 424-29 (1979)
(``clear and convincing'' evidence standard held constitutional). To be
sure, there is a very significant difference between involuntary civil
commitment or quarantine of someone deemed dangerous to the public for
reasons that entail no moral opprobrium and imprisonment or, most
extreme of all, execution, of someone convicted as a war criminal. But
in a legal universe where the option of permanent incarceration as a
``probable once and future terrorist'' is non-existent, to put decisive
weight on the moral valence of the ``war criminal'' label may mean
violating the maxim that our Constitution is not a suicide pact. For
proof beyond a reasonable doubt--using those words in their criminal
law sense and not with a wink--may be too much ever to expect in at
least some categories of terrorism cases where intrinsic difficulties
of gathering and presenting the needed evidence, particularly if the
hearsay rule and other somewhat artificial obstacles are interposed,
would predictably lead to the release of individuals likely to cause
the avoidable loss of far more innocent life than would result from a
somewhat softer standard of proof.
9. Congress should also ensure that an accuser not be given the
final word as the court of last resort in the appeal of a conviction or
sentence that the accuser obtained in his role as prosecutor or as the
prosecutor's ultimate superior--a power currently granted the President
by his Military Order. See Sec. 4(c)(8) (trial record submitted for
President's ``review and final decision''). It has been an axiom of
Anglo-American law for nearly four centuries that a ``person cannot be
judge in his own cause,'' Dr. Bonham's Case, 8 Co. 114a, 118a (1610), a
principle applicable to appellate no less than trial judges. Aetna Life
Ins. Co. v. Lavoie, 475 U.S. 813, 821-25 (1986). The fact that no
appeal at all is constitutionally mandated from a criminal conviction
rendered by a civil court, McKane v. Durston, 153 U.S. 684 (1894), has
never been taken to imply that an ``appeal'' to the chief prosecutor
himself can satisfy due process where the judgment appealed from was
rendered by a body ``whose personnel are in. . .the executive chain of
command,'' Reid v. Covert, 354 U.S. 2, 36 (1957), as is true of courts
martial, Id., and of any other military tribunal drawn exclusively from
the President's military subordinates.
Unless Congress opts for the novel alternative of having one or
more members of each military tribunal drawn from the Article III
judiciary--as Congress did in setting up the U.S. Sentencing
Commission, see Mistretta v. United Sates, 488 U.S. 361 (1989), and in
creating the panel charged with the task of appointing the independent
counsels, see Morrison v. Olsen, 487 U.S. 654 (1988)--it follows that
Congress must probably guarantee an expedited appeal to some entity
independent of the executive branch, such as the Court of Appeals for
the Armed Forces. Ultimate discretionary review by the Supreme Court on
writ of certioraris would be an optional feature in such an
arrangement. Whatever system of appeals is provided, it seems plain
that, if considerations of national security or witness protection so
require, Congress could provide that any appeal to a body independent
of the President be conducted as a closed proceeding, with the record
of the appeal to be kept confidential.
10. Although the UCMJ provides a useful model, the power to set out
procedures in the first instance might instead be delegated to the
Department of Defense, provided that, within a specified time before
such procedural regulations go into effect, they are reported to
Congress. Such a mandatory waiting period would give Congress an
opportunity to reject or amend the regulations by joint resolution
(not, of course, by a mere concurrent resolution, or by a one-house
resolution, both prohibited under INS v. Chadha, 462 U.S. 919, 952
(1983)). Indeed, if military commissions or tribunals outside the UCMJ
framework are to be as rare an occurrence as the administration insists
they are meant to be, Congress might simply decide to require such
tribunals to be individually authorized by the President after a
statutorily mandated consultation with congressional leadership to
explain why existing institutions, including the Article III courts,
are inherently insufficient in the circumstances. Such congressional
oversight of the President's conduct of this war would draw in part, of
course, on the War Powers Resolution of 1973, Pub. L. No. 93-148, 87
Stat. 555 (codified at 50 U.S.C. Sec. Sec. 1541-1548 (2000)), as
precedent--something to which the Bush administration, which invoked
the War Powers Resolution as part of the foundation for the Use of
Force Resolution that it proposed to, and obtained from, Congress on
September 18, 2001, should have no objection. In any event, Congress
would presumably want to require the President or his Secretary of
Defense to submit regular periodical reports concerning the proceedings
of the military tribunal, and the continued need for their existence.
Oversight
11. However, Congress could also ensure continued oversight of
military tribunals in a variety of ways--for example, by controlling
the manner in which the presiding officers are selected. It may require
that presiding officers have certain minimum qualifications, and may
permit civilians to serve. Alternatively, Congress may require the
Secretary of Defense to submit a list of eligible candidates, from
which Congress would select presiding officers to serve for a term of
years. Congress could also establish procedures for the removal of such
officers.
12. In addition, Congress should certainly provide for the ``sun
setting,'' or automatic expiration after a relatively few years (three
or four would seem prudent), of whatever authorization it enacts for
special military tribunals to deal with suspected terrorists, just as
was done in the USA-PATRIOT Act, see, Sec. 224, inasmuch as the war
being waged against international terrorism, unlike a declared war
against a sovereign nation, could go on indefinitely, with no plausible
way of declaring it over at any given point.
Conclusion
13. Finally, it is worth noting that Congress occupies a privileged
position not available to any court that may be asked to decide the
constitutional issues arising from these tribunals. For Congress has
before it questions concerning the prolonged and secret detention of
aliens and the use of what appears to be a form of ethnic, or at least
national-origin, profiling in the interrogation of immigrants;
challenges to the conceded use of United States citizenship as a reward
for providing information that might lead to the breakup of terrorist
cells or the apprehension of terrorists; concerns going to possible
abuses of prosecutorial discretion; issues regarding the alleged breach
of the attorney-client privilege; worries triggered by Department of
Justice indications that the FBI, now in a powerful new information-
sharing arrangement with foreign intelligence agencies, may be on the
verge of resuming practices, happily abandoned decades ago, involving
keeping close tabs on, and even planting secret government informants
in, political, religious, and civil rights-civil liberties groups; and,
of course, all the fears and criticisms triggered by the November 13
Military Tribunal Order.
I believe Congress should seize this historic opportunity to
investigate with care but with dispatch, and then to craft an
integrated legislative package that protects individual freedoms while
permitting, if truly necessary, a form of secure tribunal in which to
try suspected war criminals who pose a particularly virulent threat.
While I believe such tribunals may well be justifiable in extremely
limited circumstances in which, among other things, the laws of war
have been violated, we must be clear that facile distinctions between
terrorists who kill our people with nefarious schemes incubated in
caves located far across the seas, and those who do so by carefully
hatching plots in the comfort of our cities, concealing themselves as
civilians while they plan monstrous acts of mass murder, are worth very
little in the larger scheme of things. Bin Laden, and the leader of the
terrorist cell of aliens living in our midst after gaining lawful entry
to this country who proceeded to turn our world upside down on
September 11, are cut from the same cloth.
We must keep in mind, too, that the vast majority of individuals
who may be subjected to scrutiny because of their previous affiliation
with or support for terrorist organizations are guilty of at most run
of the mill crimes, crimes properly punished in civilian court. We must
not make martyrs out of petty criminals. Far better to show our foes
that American justice will survive their assault than to sacrifice our
core values through hasty overreaction.
This, then, is our Korematsu: the choices we face now--as then--are
difficult ones. But I believe that Congress can rise to the occasion,
resist the undue consolidation of power within the executive branch,
and secure our freedom and our safety alike, requiring no more
compromise of our liberty than is genuinely essential--and then only in
ways that respect equality. These are the better angels of our nature
to whom I bid Congress listen today.
Senator Schumer. Thank you, Professor Tribe, for excellent
testimony.
Senator Hatch has to leave and wanted to make a final
comment, so I am going to give him the prerogative of the
ranking member and former chairman role.
Senator Hatch. Well, thank you, Mr. Chairman. I do have to
leave, and I want to apologize to your other witnesses, because
you are all important to me.
And I want to personally congratulate you, Professor Tribe.
We have been together on a lot of occasions, on a lot of
issues, and we have conflicted and we have been together as
well. Much of what you have said I think is very profound and
worthwhile for Congress to listen to.
Mr. Tribe. Thank you.
Senator Hatch. And I just wanted to personally compliment
you on your article in ``The New Republic'' as well as what you
have said here today. I am not sure I agree with every point,
but I--
Mr. Tribe. I would worry if you did, Senator.
Senator Hatch. You should never say anything like that.
[Laughter.]
Mr. Tribe. Well, I think we all have slightly different
views.
Senator Hatch. That is right. I am just kidding. But much
of what you have said has been very informative, as has Mr.
Terwilliger's, and I am sure the rest as well. But it has also
been helpful to the Committee, as you always have been. So I
just wanted to tell you that.
And apologize to the rest of you, because I respect each
and every one of you, and I apologize for having to leave.
Thank you.
Senator Schumer. Thank you, Senator Hatch.
Our next witness is retired Major General Michael Nardotti.
He graduated from West Point and from Fordham University School
of Law, a native New Yorker as well. He is a decorated combat
veteran. He served for over 28 years as a soldier and as a
lawyer in the army. Most recently he served as the Judge
Advocate General from 1993 to 1997, and as the Assistant Judge
Advocate General for Civil Law and Litigation from 1991 to
1993. Since 1997 he has been a partner with the D.C. law firm
of Patton Boggs.
Thank you for being here, General Nardotti. Your entire
statement will be read in the record.
STATEMENT OF MICHAEL J. NARDOTTI, JR., MAJOR GENERAL (RETIRED),
FORMER ARMY JUDGE ADVOCATE GENERAL, AND PARTNER, PATTON BOGGS
LLP, WASHINGTON, D.C.
General Nardotti. Thank you very much, Mr. Chairman,
members of the Committee. Thank you for the opportunity to
contribute to the dialogue on this extremely important issue. I
will be brief in my comments because it would be more useful to
use as much time as possible to respond to the Committee's
questions.
I must make clear at the outset that my personal view on
the issue of the President's authority to use military
commissions in this instance, I side with those who support the
President and believe that he does have the authority to so
act. I believe the more debatable and more cautionary question
is how he should implement any decision to go forward with
military commissions.
I have been asked to provide the Committee with some
highlights of differences and similarities between the Article
III courts and courts martial, and to the extent that they
might apply to military commissions in an effort to enlighten
the debate and extend the knowledge base of those who are
participating in it with respect to the particular practices
and procedures in each of those fora. In doing so, perhaps I
can assist in providing a better understanding of the
President's decision to consider this alternative and the
possible results of the practices and procedures about which
DOD will provide further elaboration later.
It goes without saying, of course, as mentioned previously
by members of the Committee, that there are differences between
Article III courts and courts-martial. There are differences as
well between courts-martial and military tribunals, as they
have been and may be conducted. The fact that there are
similarities and differences is not as critical as the reasons
for those similarities and differences. I believe it is
important, however, to focus on one aspect of that with respect
to the differences between Article III courts and courts-
martial.
When you think of the people who are subject to the
jurisdiction of courts-martial, the men and women who are
putting their lives on the line on a regular basis in the
service of the nation, I do not think anybody would be able to
state that there is a group that is more deserving of whatever
benefits, whatever privileges, whatever protections that we can
provide for them, particularly in the judicial process where so
much would be at stake. Yet we do have differences, and there
are aspects of the military justice system and the manner is
which courts-martial operate that would appear to accord them
lesser rights.
Why is this so? Well, this is so because Congress
recognized that because of the peculiar needs of the military,
there is a threefold purpose in administering military justice.
Not only did the system have to promote justice and be fair to
soldiers, but it also had to do so in a way which would assist
in maintaining good order and discipline and promote the
efficiency and effectiveness of the armed forces. Congress
recognized that when a military force operates throughout the
world and in environments and challenges that have no parallel
in the civilian environment, resort to the courts established
under Article III is not a practical or workable option. So
they did the next best thing in terms of developing a system in
of law, a military justice system in which the public and
Congress would have confidence and which would provide justice
for members of the military.
I do not believe that anyone would contest that justice as
administered under the Uniform Code of Military Justice and in
the Manual for Courts-martial meets due process standards. It
is different, however, from the due process one would find in
the Article III Federal Courts for important reasons. My
statement goes into more detail about some of the important
differences and similarities, but I would highlight just a few
points that I believe would be of particular relevance to this
Committee.
I had not heard this view expressed today, but in some of
the debate that has swirled around the issue of military
commissions, there has been the suggestion that those who would
be brought before the commissions for justice would in no way
be able to receive fairness. The assumption is that the
military officers who might take part in such an endeavor would
be predisposed to go in a certain direction, and that
conviction would be almost a certainty. I would suggest that
the historical record does not support that conclusion.
While much focus and attention has been paid to the Quirin
case, conducted during World War II, the commissions that were
conducted after World War II, were conducted in Germany and in
the Pacific, demonstrate quite a different picture.
Approximately 1,600 military commissions were conducted in
Germany, and approximately 1,000 were conducted in Japan. The
conviction rates of those commissions was about 85 percent.
Now, that compares with a felony conviction rate in the Federal
Courts of about 93 percent. Courts-martial conviction rates are
about 93 percent. Now, in the Southern District of New York,
Senator Schumer, the conviction rate is a little bit higher.
There are tougher prosecutors up there. But I think that that
statistic speaks volumes in terms of what can be done in terms
of fairness. And certainly the commentary on those commissions
following the war also demonstrated and supported the
conclusion that they were conducted with fairness.
I would suggest, as one of the members of the Committee
asked before, I believe it was Senator Hatch, mentioned, who
would want to sit on a jury in judgment of the perpetrators of
the events of September 11th? Another question is: could you
really find a jury that would not be biased in some way? Then,
look to the military example. Look at what happened in World
War II where you had officers, United States Army officers,
sitting in judgment of those whom they had fought against,
those who had killed their colleagues or were responsible for
the deaths of their colleagues in Europe and Japan. Yet, they
were able to administer justice in a way that, with respect to
the conviction rates shown, certainly was very reasonable and
fair.
When you take that example, then, and you take the next
step and say, ``All right, we understand why there are
differences between courts-martial and Article III Courts. What
about the military commissions versus courts-martial? Why
shouldn't they be one and the same?'' It certainly is worth
underscoring several times that courts-martial and military
commissions are not one and the same.
There is flexibility in the conduct of military commissions
because they serve a different purpose. As has been
compellingly argued and explained here previously, the basis
for subjecting a person to the justice of a military commission
is well-founded in international law and very specific in terms
of the liability of someone to be placed before a commission
because they have, by their actions, determined their status as
unlawful combatants and made themselves subject to the
jurisdiction of a commission that can administer justice more
summarily than in other circumstances.
That is certainly not to suggest that because these people
engaged in horrendous acts they do not deserve justice. That is
not the point. One could point to many examples of criminal
behavior where that might be said. Yet, we certainly do not
suggest that with someone who commits a serious criminal act,
the decision of how to deal with them is based on what they
deserve.
The forum here is determined by what is authorized,
established, and justified under international law.
International law allows the President to make the decision to
use this forum, a military commission, in this particular
instance. And when you examine--I realize my time is up, but
just to make this point further and I will certainly amplify on
this in the opportunity for questions and answers--when you
examine the reasons for differences with respect to the public
safety, the very legitimate and sound public safety concerns,
the intelligent compromise concerns, and the issues that, the
problems that are inherent in gathering evidence, there
certainly is a reasonable factual basis to administer justice
in military commissions in a different way than other fora.
Thank you.
[The prepared statement of General Nardotti follows:]
Statement of Michael J. Nardotti, Jr., Major General (retired), United
States Army
Introduction
Mr. Chairman and Members of the Committee, thank you for the
opportunity to contribute to this important dialogue. The possible use
of military commissions, as ordered by the President in his role as
Commander-in-Chief of our Armed Forces, to conduct trials of non-United
States citizens for violations of the law of war as described in the
Military Order of November 13, 2001, concerning the ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' is a extraordinary measure in response to extraordinary
events. Careful explanation of the justification and basis for this
proposed action and related actions which will follow, certainly will
inform the vigorous public debate. To assist in this effort, I have
been asked to highlight and discuss some of similarities and
differences between the prosecution of criminal matters in our Armed
Forces in courts-martial under the Uniform Code of Military Justice and
those matters prosecuted in Article III Federal courts. Further, I have
been asked to relate these similarities and differences to military
commissions as some of those tribunals have been conducted in the past
and may be conducted in the future under the President's Order.
Background
As a matter of background, I am a veteran of over twenty-eight
active duty in the United States Army. Early in my career, I served as
an infantry platoon leader in combat in Vietnam, and, later, in a
variety of positions in the United States and overseas as a soldier and
lawyer. I served as The Judge Advocate General of the Army from 1993
until my retirement in 1997. Since that time, I have been in the
private practice of law in Washington, DC.
The President's Proposed Use of Military Commissions
Before describing the issues which will be the primary focus of my
statement, I should make clear my view of the President's proposed use
of military commissions to non-citizens who planned, perpetrated, or
aided and abetted the attacks of September 11. Without restating the
arguments previously made to this Committee in support of the
President. I agree with those who believe the President, as Commander-
in-Chief, has the authority under the Constitution to take these
actions. The terrorist acts of the organization known as al Qaida, up
to and including the horrendous attacks of September 11, 2001, leave no
doubt that the United States is in a state of armed conflict with an
outside enemy and that the President is most certainly correct in his
conclusion that ``an extraordinary emergency exists for national
defense purposes.'' The Joint Resolution of the Senate and House of
Representatives underscores this conclusion and supports the need for
extraordinary action in authorizing the President, ``to use all
necessary means and appropriate force'' against those who planned and
perpetrated these acts to prevent them from committing future terrorist
acts.
The use of military commissions under these circumstances is a
lawful means available to the President, as Commander-in-Chief, to
achieve this end. The justification for the use of military commissions
is well-established in international law and the use of tribunals of
this type has a lengthy history in times of extraordinary emergency in
our country. Congress has recognized and affirmed their use, previously
in the Articles of War, and currently in Articles 21 and 36 of the
Uniform Code of Military Justice. The United States Supreme Court
upheld the constitutionality of trial by military commissions of enemy
saboteurs caught within the United States during World War II in Ex
Parte Quirin, 317 U.S. 1 (1942). The Court's reasoning in that case
with respect to the lawfulness of trying unlawful combatants--those who
do not wear uniforms or distinctive insignia, who do not carry arms
openly, and who do not conduct operations in accordance with the law of
war--would appear to be particularly applicable to those who planned,
perpetrated, or aided and abetted the attacks of September 11--acts of
monumental and extreme violence against thousands of our civilian
citizens.
The more debatable and critical issue may well be how the President
chooses to exercise this option. The Quirin model is relevant to an
extent, but it does not necessarily provide all the answers for a
similar undertaking today. The Military Order of November 13, 2001,
raises important issues which will need further clarification, and
Administration officials have already begun to clarify some of those
points. They have stressed repeatedly that the specifics of the rules
to be applicable to military commissions in this instance are still
under development and review by the Department of Defense. The
President, nevertheless, has made certain basic requirements clear,
including that there be a full and fair trial. The determination of
what constitutes a full and fair trial under these circumstances should
include particularly careful consideration to the extraordinary
circumstances which justify the use of and compel the need for military
commissions in this instance. Further, the significant evolution in the
administration military justice since the Quirin decision and the
extent to which that evolution should impact on the conduct of military
commissions today also should be carefully considered.
The Unique Need for the Military Justice System
Before focusing on military commissions, I will explain, as a
starting point, why there are differences between criminal prosecutions
in Article III Federal courts and criminal prosecutions in the Armed
Forces. Congress and the courts have long-recognized that the need for
a disciplined and combat ready armed force mandates a separate system
of justice for the military. Our Armed Forces operate world-wide in a
variety of difficult and demanding circumstances which have no parallel
in the civilian community. Military commanders of all services are
responsible for mission accomplishment and the welfare of their troops.
In the most difficult operational and training situations, they make
decisions that can and do put the lives of their troops at risk. These
commanders also are responsible for administering a full range of
discipline to ensure a safe and efficient environment in which their
troops must serve. They are able to accomplish this goal through the
use of military law, the purpose of which, as stated in the Preamble to
the Manual for Courts-Martial United States (2000 Edition), is ``to
promote justice, to assist in maintaining good order and discipline in
the armed forces, to promote efficiency and effectiveness in the
military establishment, and thereby to strengthen the national security
of the United States.'' The range of disciplinary options and
circumstances under which commanders be able to employ them simply make
resort to alternatives in the civilian community, whether through the
Federal courts or other means, an unworkable and unrealistic option.
In recognition of this fact, Congress, acting under its
Constitutional authority ``To make Rules for the Government and
regulation of the land and naval Forces,'' enacted the Uniform Code of
Military Justice (UCMJ) in 1950 to set forth the substantive and
procedural laws governing the Military Justice System. Congress enacted
the UCMJ to make ``uniform'' what previously was not--the criminal law
applicable to all the Military Services. Substantive law is contained
in the various punitive articles which define crimes under the UCMJ.
While Congress defines crimes, the President establishes the procedural
rules and punishment for violation of crimes. The President's rules are
set forth in the Manual for Courts-Martial. The Manual is reviewed
annually to ensure it fulfills its fundamental purpose as a
comprehensive body of law.\1\
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\1\ The UCMJ establishes three levels of military courts: (1)
Courts-martial are the trial level courts. General courts-martial are
the forums in which felony offenses are prosecuted. Lower level special
and summary courts-martial have jurisdiction to try most offenses but
are limited in the punishments which they may impose; (2) Four Courts
of Criminal Appeals (Army, Navy/Marine Corp, Air Force, and Coast
Guard) provide the first appellate review which is automatice in cases
in which the sentence adjudged includes confinement of one-year or more
or a punitive (Bad Conduct or Dishonorable) discharge; and (3) The
United States Court of Appeals for the Armed Forces is the highest
military appellate court. The five judges of this court are appointed
by the President, with the advice and consent of the Senate, and serve
for a term of 15 years. Decisions by this court are subject to review
by the Supreme Court by a writ of certioraris.
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Article III Federal Courts Prosecutions and Courts-Martial
a comparison of certain rights, practices, and procedures
The administration of military justice under these authorities, by
Congressional and Presidential design, is, by necessity, different in
some respects from the civilian counterpart, but in other respects is
similar. Several examples of differences and similarities in the
pretrial, trial, and post-trial phases are the following: (1) Rights
warnings against self-incrimination in the military are broader than
those required in the civilian community and actually predated the
requirement of the Miranda decision by many years. Rights advisement in
the military is and has been mandated whether or not the interrogation
occurs in a custodial session; (2) Right to counsel in the pretrial and
trial phases in the military is broader than in the civilian community
where counsel is appointed if the accused is indigent. Military counsel
is provided regardless of ability to pay. Individually requested
military counsel also may be provided if available. Civilian counsel
may be appointed as well at the service members own expense; (3) In the
pretrial investigation phase for felony prosecutions in the military,
there is not the equivalent of a secret grand jury in which the
defendant has no right to be present. An investigative hearing, which
is routinely open, is conducted under Article 32 of the UCMJ to
determine whether there are reasonable grounds to believe the accused
servicemember committed the offense alleged. The accused servicemember
has the right to be advised in writing of the charges, to attend the
hearing with counsel, to examine the government's evidence, to cross
examine witnesses, to produce witnesses, and to present evidence; (4)
Pretrial discovery in the military is similar to that followed in
federal criminal proceedings, but more broad. The government is
required to disclose any evidence it will use in the sentencing phase
of the proceeding if there is a conviction., or evidence that tends to
negate the degree of guilt or reduce the punishment; (5) Unlawful
command influence--an attempt by superior military authority to
influence the outcome of a proceeding--is prohibited and is subject to
criminal sanctions. There is no equivalent issue in federal
proceedings; (6) In federal prosecutions a jury of peers is selected at
random. General courts-martial must have at least five members
selected, as required by Article 25 of the UCMJ, based on ``age,
education, training, experience, length of service, and judicial
temperament.'' Civilian jury and military court-martial panel members
may be challenged for cause or peremptorily; (7) With respect to trial
evidence, the rules in both forums--the Federal Rules of Evidence in
federal courts and the Military Rules of Evidence in courts-martial are
almost identical. New Federal Rules of Evidence automatically become
new Military Rules of evidence unless the President takes contrary
action within 18 months; (8) The burden of proof for conviction in both
forums is beyond a reasonable doubt; (9) For conviction or acquittal in
federal prosecutions jurors must be unanimous. Otherwise, a hung jury
results and the defendant may be retried. In courts-martial, except in
capital cases, two-thirds of the panel must agree to convict. The first
vote is binding. If more than one-third of the panel vote to acquit,
then there is an acquittal. A hung jury and retrial on that basis is
not possible in the military. In capital cases in courts-martial, a
unanimous verdict is required for conviction; (10) Sentencing in
federal courts is done by the judge alone, and sentencing guidelines
for minimum and maximum sentences apply. In courts-martial, sentencing
is decided by the court-martial panel members or by the military judge
(if the accused servicemember chose to be tried by a military judge
alone). There are maximum sentence limitations but no minimums. The
accused servicemember is entitled to present evidence in extenuation
and mitigation, including the testimony of witnesses on his or her
behalf, and may make a sworn or unsworn statement for the court-
martial's consideration. Two-thirds of the panel must agree for
sentences of less than 10 years. Three-quarters of the panel must agree
for sentences of 10 years or more. To impose capital punishment, the
panel must unanimously agree to the findings of guilt, must unanimously
agree to the existence of an ``aggravating factor'' required for a
capital sentence, and must unanimously agree on the sentence of death.
Capital punishment may not be imposed by a military judge alone; (11)
In federal prosecutions, appeal is permissible, but mandatory in cases
of capital punishment. There are two levels of appeal--the Circuit
Courts of Appeal and the United States Supreme Court. In the military,
appeal is automatic for sentences which include confinement of one year
or more or a punitive (Bad Conduct or Dishonorable) discharge. There
are three levels of appeal--the Courts of Criminal Appeals of the
military services, the Court of Appeals of the Armed Forces, and the
United States Supreme Court. Sentences which do not require automatic
appeal may be appealed to the Judge Advocate General of the convicted
member's service; (12) Appellate representation in federal prosecutions
is provided if the convicted person is indigent. In the military,
appellate representation is provided in all cases regardless of
financial status.
This comparison of the relative handling of pretrial, trial, and
post-trial matters, respectively, in Article III Federal courts and
courts-martial is not exhaustive. It demonstrates, however, that even
in accommodating the needs unique to the administration of military
justice, courts-martial, in many important respects, compare very
favorably, even though not identically, to process and procedures
accorded in the Article III federal courts.
Courts-Marital and Military Commissions
Just as there are sound reasons for differences in rights,
practices, and procedures between Article III Federal courts and
courts-martial, there also are sound reasons for differences between
courts-martial and military commissions. Courts-martial and military
commissions, of course, are not one in the same. Courts-martial are the
criminal judicial forums in which members of our Armed Forces are
prosecuted for criminal offenses, the vast majority of which are
defined in the Uniform Code of Military Justice. Congress and the
President have given continuing attention to the development and growth
of the Military Justice System to ensure that in seeking to achieve
``good order and discipline in the armed forces [and] to promote
efficiency and effectiveness in the military establishment,'' justice
is also served in the fair treatment of soldiers, sailors, airmen, and
marines.
Military Commissions serve a distinctly different purpose and have
been used selectively in extraordinary circumstances to try enemy
soldiers and unlawful combatants, among others, for violations of the
laws of war. In the case of unlawful combatants --those who do not wear
uniforms or distinctive insignia, who do not carry arms openly, and who
do not conduct operations in accordance with the law of war--their
actions and conduct determine their status and the type of action which
may be taken against them as a result. Those who entered our country
surreptitiously and who planned, perpetrated, or aided and abetted the
attacks of September 11, causing death and destruction on an
unprecedented scale, engaged in an armed attack on the United States in
violation of customary international law. Their actions and offenses
under the law of war allow them to be treated differently from lawful
combatants and others who violate the criminal law.
Military commissions are the appropriate forum for dealing with
these unlawful combatants. To reiterate the earlier-stated
justifications, the use of military commissions is supported by
international law, there is lengthy historical precedent for their use,
the United States Supreme Court has upheld their use in similar
circumstances, Congress has recognized and affirmed their use in the
Uniform Code of Military Justice and in the predecessor Articles of
War, and the extraordinary emergency which the President has declared
and Congress' support to the President in its Joint Resolution
authorizing him ``to use all necessary means and appropriate force''
where there have been egregious violations of the law of war all
compellingly support this conclusion.
The question of the rules and procedures to apply remains,
nevertheless. While the President has determined that, ``it is not
practicable to apply in military commissions under this order the
principles of law and the rules of evidence generally recognized in the
trial of criminal cases in the United States district courts,'' the
appropriate principles and rules of procedures prescribed for courts-
martial may still serve as a useful guide. The propriety of these
principles and rules should be measured against the legitimate concerns
for public and individual safety, the compromise of sensitive
intelligence, and due regard for the practical necessity to use as
evidence information obtained in the course of a military operation
rather than through traditional law enforcement means. Further, the
principles and rules adopted also should take into account the
evolution, growth, and improvement in the administration of criminal
justice, in general, and of military justice, in particular, in
determining the standards to apply with respect to the most compelling
issues, such as those relating to the imposition of capital punishment.
I am confident that the President and the Department of Defense are
mindful of the exceptional significance of these issues, and that they
will take them into careful account as further decisions are made.
Mr. Chairman and Members of the Subcommittee, I am prepared to
answer your questions.
Senator Schumer. Thank you very much, General Nardotti.
Again, the testimony has just been excellent here.
And now let me move to our fourth witness. It is Professor
Cass Sunstein. He is the Karl Llewellyn Professor of
Jurisprudence at the University of Chicago Law School. He is a
member of the University Political Science Department as well.
Graduated from Harvard College, Harvard Law School, clerked
first for Justice Benjamin Kaplan of the Massachusetts Supreme
Judicial Court and then Justice Thurgood Marshal of the U.S.
Supreme Court.
Before joining the University of Chicago Law faculty, he
worked as an attorney adviser in the Office of Legal Counsel at
the U.S. Department of Justice. He too is the author or
numerous books and articles on topics such as constitutional
law and democracy.
Professor Sunstein, welcome once again before this panel,
and your entire statement will be read into the record.
STATEMENT OF CASS R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED
SERVICE PROFESSOR OF JURISPRUDENCE, LAW SCHOOL AND DEPARTMENT
OF POLITICAL SCIENCE, UNIVERSITY OF CHICAGO, CHICAGO, ILLINOIS
Mr. Sunstein. Thank you, Mr. Chairman. It is a pleasure to
be here.
These comments will be really a response to Senator
Sessions' invitation, which is to try to give some details
about how to make the process work better. The starting point
for these remarks is that many of the abstract debates within
the nation over the last weeks can be reduced and possibly even
dissolved I think if we proceed to the level of detail. The
suggestion is that the legitimate interest behind the
President's Military Order can be accommodated, while also
producing what the President wants, which is full and fair
trials.
I am going to make three very simple suggestions. The first
is that the scope of the Military Order is intended to be
narrow, notwithstanding some of its loose language and steps
should be taken to narrow the scope to respond to some worries
that American citizens have.
The second suggestion, beyond the issue of scope, is that
the Order ought to be implemented with attention to the
essentials of procedural justice, essentials that can be
obtained by looking carefully at the best of our practice after
World War II. The third suggestion is that steps ought to be
taken to ensure neutrality with respect to the adjudication by
attending closely to the composition of the adjudicators on the
military commissions and perhaps by building in mechanisms for
appeal.
Now to these three issues of scope, essentials of
procedural justice and neutrality. The Military Order was
obviously written under tremendous time pressure, and it is
clear that the Executive Branch and the President do not intend
to apply its terms to all those to whom it could be applied by
its terms. The President has clarified, through his agents,
that the laws of war are what concerns him, and the President
indeed suggests that the constitutional authority that the
President has under this Order applies to the use of military
commissions when the laws of war have been violated. The laws
of war are not violated by lawful combatants such as by the
Taliban soldiers who were not involved in terrorist activities.
The laws of war are violated when someone is engaged in attacks
on civilian populations or in secret infiltration within the
boundaries of the United States. If it is clarified that we are
talking only about the laws of war, then in one bold stroke,
the scope of the Order will be significantly narrowed.
The second suggestion I have with respect to scope is it is
clear that the President intends to apply this Order, rarely if
at all, to people who are arrested or charged inside the
territorial boundaries of the United States. Even with respect
to noncitizens, it is not the President's general intention to
apply military commissions to people who have done evil deeds
here. There is a narrow exception, which is if people have
infiltrated the United States in order to foment or assist
terrorist activities within the United States, if they are
effectively spies, then the Military Order might apply to them.
But at least as a strong presumption, this Military Order is
not intended to cover people arrested within our boundaries.
A simple suggestion, that is, that the scope of the Order
would be narrowed greatly if we understand that the laws of war
are what are at stake and if foreign combatants outside our
territorial boundaries are the people for whom we are mostly
interested in using military commissions. This sort of
clarification, now beginning informally, should be made
formally, either by the Executive or by the Congress. If that
is the case, then we will be going very close to the sort of
action that President Roosevelt authorized after World War II.
The second suggestion is that the essentials of procedural
justice should be specified, preferably by the Executive Branch
quickly, even better by Congress acting with the Executive
Branch. We could clarify the essentials of procedural justice
by building on the best of our practices after World War II.
This catalog has not been given in any document of which I am
aware, but if we look through what we actually did, we can get
some pretty good and specific guidelines. As a bare minima, the
ideas are, first, a defendant should know the nature of the
charge against them. They should know as well the basis of the
charge against them, and they should have a right to reasonable
rules of evidence. Now, there might be some restriction on
their knowledge of the basis of the charge against them in
those narrow circumstances in which providing it would
compromise legitimate security interests, but for the most
part, just providing the nature and basis of the charge would
give defendants in these tribunals, as in Federal Courts, a
significant amount of what due process requires.
The second essential procedural fairness is a right to be
defended by counsel and a chance to defend and respond to the
evidence made, invoked against the defendant. So long as there
is a right to be defended by a vigorous advocate and a chance
to defend one's self by responding to charges, there will be a
significant safeguard against what everyone wants to avoid,
that is, false convictions, a very specific and narrow idea.
The third idea is a strong presumption in favor of public
trials, at least public trials in the form of publicly-
available transcripts, made available, perhaps, on the day that
the trial occurred. Something of this general sort occurred
after World War II, where the trials were compiled by
transcript and are available right now. You can get them
tomorrow if you like to see exactly what happened. Of course,
when security interests are at stake, some parts of the trials
might not be made public, but the vast majority of it has been
in the past and should be in the future, as the White House
Counsel has indicated.
The fourth simple suggestion is that there should be here,
as everywhere else, a presumption of innocence, a particular
part of the written and unwritten law of all civilized
societies, and a standard of conviction beyond the
preponderance of the evidence standard. All this means is that
in civil trials, preponderance of the evidence is the
appropriate standard; in criminal trials you need something a
little tougher.
With respect to the neutrality of judges, we need not rely
only on military judges, though no one should accuse them of
bias or partiality. We might use state or Federal judges, as
indeed were used in the aftermath of World War II. There is no
reason to restrict the President's pool to military personnel
if he wants to have a diversity of judges. We could also build
in mechanisms of appeal. In fact, by using state and Federal
personnel, either in an informal or a formal capacity to ensure
that the rudiments of procedural fairness have been met.
By way of conclusion, when terrorism threatens national
security, the nation's priority is to eliminate the threat, not
to grant the most ample procedural safeguards to those who have
created it. But it should be possible to respond to the
President's legitimate concerns, while also complying with the
basic requirements of procedural justice. There is no conflict
between the war against terrorism and ensuring fair trials.
[The prepared statement of Mr. Sunstein follows:]
Statement of Cass R. Sunstein, Karl N. Llewellyn Distinguished Service
Professor of Jurisprudence, Law School and Department of Political
Science, University of Chicago
Mr. Chairman and Members of the Committee:
I am grateful to have the opportunity to appear before you today to
discuss some of the issues arising from President Bush's decision to
provide for military commissions as one option for trying suspected
terrorists. President Bush has strongly emphasized the need to ensure
that defendants receive ``full and fair trials.'' Military Order of
November 13, 2001, section 5(c)2. In these remarks, I explore ways to
do what everyone agrees is most essential--to protect national security
and to defeat terrorism--while also ensuring basic fairness in the
relevant trials. There is no reason to doubt that sensibly designed
procedures can be fair and at the same time promote the President's
basic goals: to ensure expeditious trials, to avoid a ``circus''
atmosphere, and to keep sensitive information confidential.
I offer three basic suggestions, designed not as definitive
solutions but as potential steps in the right directions. First, the
President's order is intended to have a narrow scope, and steps should
be taken to clarify and specify its anticipated range. Second,
principles of procedural justice, adapted for the specific occasion,
should be established for military commissions, so as to ensure against
inequity and false convictions. Third, measures should be taken to
ensure against the reality or appearance of unfairness in the relevant
trials, perhaps through use of federal or state judges on military
commissions, and perhaps through the creation of certain mechanisms for
appellate review, either formal or advisory, by relatively independent
officials.
Shared Goals and Concerns
There has been detailed discussion of the constitutionality of
President Bush's military order of November 13, 2001. For present
purposes I will assume, without discussing the point, that the order
does not violate the Constitution. See Ex Parte Quirin, 317 U.S. 1
(1942). I will not engage the policy questions raised by the
President's decision. I will also assume what is generally agreed: From
the standpoint of both constitutional law and democratic legitimacy, it
is far better if the President and Congress act in concert.\1\ As a
general rule, the executive branch stands on the firmest ground if it
acts pursuant to clear congressional authorization. With this point in
mind, my major topic is how best to respond to a question raised both
here and abroad: how to ensure (a) that people will be convicted in
military tribunals only if they are guilty, and (b) that everyone will
receive the basic justice to which the President, the Attorney General,
and their various critics are simultaneously committed.
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\1\ To be sure, the President has a range of powers under the
Commander-in-Chief clause, and these powers enable him to do a great
deal on his own. But the boundaries of that authority remain untested.
See, e.g., Ex Parte Quirin, 317 U.S. 1, 29 (``It is unnecessary for
present purposes to determine to what extent the President as Commander
in Chief has constitutional power to create military commissions
without the support of Congressional legislation.'').
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Some people appear to fear that military commissions, simply by
virtue of their status as such, will not be capable of providing fair
trials. But this fear, and the contrast between civil and military
tribunals, should not be overstated in this setting. In the past, there
have been numerous acquittals in military tribunals. Perhaps
remarkably, both German and Japanese defendants were acquitted in the
aftermath of World War II. In any case civil courts would pose risks of
their own: entirely neutral justice would not be altogether easy to
assure for suspected terrorists, tried before an American jury.\2\ On
the other hand, it would be wrong to dismiss the concern of those who
are troubled by the idea of military trials in this context. History
suggests that war crimes tribunals do not always provide fair
procedures and indeed that there is inevitably some danger of a
miscarriage of justice. See Evan Wallach, The Procedural and
Evidentiary Rules of the Post-World War II War Crimes Trials, 37 Colum.
J. Transnat'l L. 851 (1999); In Re Yamashita, 327 U.S. 1 (1946). We do
not have to say, in advance, that this is a serious risk in order to
conclude that measures should be taken to reduce it. The key question,
then, is how to design a system that will not compromise American
security interests, but that will nonetheless ensure basic fairness. I
outline several possibilities here.
---------------------------------------------------------------------------
\2\ Imagine, for example, a trial before a jury in New York, or
Chicago, or Washington, D.C., or Los Angeles. Of course the defendant
could waive the right to a jury trial.
---------------------------------------------------------------------------
Limiting the Scope of Military Commissions, Formally or Informally
An obvious possibility would be to limit the scope of military
tribunals, either formally or informally, by making it clear that the
discretion arguably authorized by the President's order will allow the
use of military tribunals only on certain essential occasions, and not
in every case in which the order's requirements might be met as a
technical matter.
This idea appears to be fully consistent with the President's basic
goals (as indeed recent informal statements suggest). The fundamental
purpose of military commissions is to ensure an expeditious trial, one
that does not compromise national security interests, for terrorists
(a) captured abroad or (b) intimately involved with the planning and
execution of attacks on the United States. It is not likely that the
executive branch would seek many military trials of people lawfully
within the United States, even if there is some reason for suspicion
about their conduct. In short, the terms of the Military Order might be
taken to apply in many cases in which the executive will not, in all
probability, seek to use military tribunals. It would be useful to
obtain clarification on this point--certainly through continued
informal assurances, and perhaps through Defense Department guidelines,
narrowing the scope of the order as, for example, through guidelines
embodying presumptions \3\ against military trials for people arrested
within the territorial boundaries of the United States.
---------------------------------------------------------------------------
\3\ These presumptions could be rebutted under extraordinary
circumstances, as, for example, if evidence suggests that those
captured here were involved in the planning and execution of terrorist
attacks.
---------------------------------------------------------------------------
Rules of Evidence, Fair Procedure, and (Appropriate) Openness
An additional possibility is to design rules of evidence and
procedure that will ensure basic fairness. Of course the Department of
Defense is actively investigating these issues, and it would not be
sensible to attempt to provide a full catalogue here. The central goal
should be to ensure compliance with minimal standards of procedural
justice, adapted for the occasion. (I emphasize the need for
adaptation: The ordinary principles of procedural justice, used in
civilian proceedings, need not be carried over to this context, which
obviously raises special considerations.) To achieve this goal, it
would be desirable to build on the best of past practices by
commissions of the kind proposed--and to ensure safeguards against the
worst of those practices.
Drawing on the past, I suggest the possible candidates for
inclusion. See United Nations War Crimes Commission, Law Reports of
Trials of War Criminals 190-200 (1949), for a detailed account, on
which I build here. These possibilities include:
the presumption of innocence (emphasized, for example, by
British law in the context of war crimes, see British Law
Concerning Trials of War Criminals by Military Courts, Annex 1,
United Nations War Crimes Commission, Law Reports of Trials of
War Criminals (1997));
a standard of proof beyond the ``preponderance of the
evidence'' standard, ranging from ``clear and convincing
evidence'' to the conventional ``beyond a reasonable doubt''
standard;
assurance of a neutral tribunal;
an opportunity to know the substance of the charge;
an opportunity to have the proceedings made intelligible by
translation or interpretation;
an opportunity to know the evidence supporting conviction;
an opportunity to be represented by counsel;
the right to respond to the evidence supporting conviction,
with the narrowest possible exceptions for reasons of national
security (a relevant model here is the Classified Information
Procedures Act);
the right to cross-examination of adverse witnesses;
the right to an expeditious proceeding and disposition;
the right to present exculpatory evidence;
specification of reasonable rules of evidence, designed to
ensure admission only of material with probative value (see
President Bush's Military Order, section 4(c)(3));
as much openness and as little secrecy as possible, including
public availability of the transcripts of the trial, with the
narrowest possible exceptions for reasons of national security.
Some of the most difficult issues here involve the conflict between
the national security interest in maintaining secrecy and the
traditional American antagonism to ``secret trials.'' President Bush's
Military Order has been criticized for requiring secrecy, but it does
nothing of the kind. It remains to be decided how to handle the
conflict between the relevant interests. Everyone agrees that as a
strong presumption, trials should be kept public, to prevent injustice,
to inform the public, and to provide some assurance that justice was in
fact done. But in some cases, evidence that supports conviction is
properly kept secret, certainly from the public and in truly
exceptional cases from the defendant and defense counsel as well. It
would be a terrible mistake, in this context, to force the executive
branch to choose between (a) letting a terrorist go free and (b)
disclosing material that is likely to threaten the safety of the
nation's people. The Classified Information Procedures Act attempts to
deal with this problem, but in a way that is perhaps inadequate for
this domain. Perhaps it would be possible to redesign the Act in a way
that would respond to the government's legitimate concerns.
Ensuring a Mix of Military and Nonmilitary Judges
There is no requirement that the judges on military commissions
must be military personnel. In fact there is precedent, in the
aftermath of World War II, for including ordinary state and federal
judges on the relevant tribunals. Of course we have no reason to
question, in advance, the independence and neutrality of military
personnel; recall that military judges produced acquittals of both
Japanese and German defendants. But there is reason to say that a
mixture of judges, from diverse backgrounds, is likely to increase the
reality and appearance of fairness. Nor would such a mix intrude on the
executive's prerogatives or on the President's legitimate goals:
preventing a ``circus'' atmosphere, ensuring expedition, and ensuring
against disclosure of classified information.
I do not discuss here the extent to which Congress should take an
active role on this issue. My only suggestion is that to the extent
that civilian judges are thought to offer certain safeguards, nothing
in the President's order, or in past practice, is inconsistent with
appointing civilian judges to serve on military commissions. Such
appointments should be seriously considered as a way of counteracting
the perceived risk of unfairness. Perhaps the civilian judges might be
required to have had military experience, or experience in the military
justice system, as in fact many have done.
Strengthening Review
Under American law, appellate review of criminal convictions is the
rule, and exceptions are exceedingly rare. Of course the present
context is one in which an exception, of one or another sort, might be
well-justified. But it is also possible to imagine measures that would
create at least some check on gross unfairness. I discuss two
alternatives here.
Article III review. The first and perhaps most natural possibility
would be to provide for some form of prompt appellate review from a
specially designated panel of Article III judges. The purpose of such
review would not be to retry the facts, but to ensure compliance with
the minimal principles of procedural justice, as adapted for this
occasion. There are many models for a procedure of this kind. This is
the standard approach to Article III review of administrative action,
with federal court review to ensure against arbitrariness and
illegality. See Crowell v. Benson, 285 U.S. 22 (1932). It is also the
standard approach to Article III review of the decisions of Article I
courts, created by Congress for specialized purposes. See Northern
Pipeline Construction Co. v. Marathon, 485 U.S. 50 (1982).
These precedents could be adapted to the context of an Article II
tribunal of the sort contemplated here. Note that Article III review
could be adapted to take account of the most serious concerns of the
executive branch. A court could be asked to rule on any appeal within a
specified time, thus ensuring expedition. Appellate review, unlike an
ordinary trial, could reduce the risk of a ``circus'' atmosphere. If
necessary, such review could be conducted solely in writing, without
oral argument. Most important, judicial review could be limited so as
to ensure compliance with the minimum requirements of fairness: a
chance to know the basis for the action, a chance to contest the
evidence, an evidentiary standard sufficient to ensure against error.
See Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975). To
be sure, an issue might be raised, under the Commander-in-Chief Clause,
of the power of Article III courts to review Article II courts without
presidential authorization; but so long as the President accepted such
limited review, I do not believe that this arrangement would be
unconstitutional.
2. Informal advisory review. Appellate review by an Article III
tribunal appears not to be contemplated by the President's Military
Order.\4\ A more modest possibility would be to create a less formal
system of review, not from an Article III Court, but from Article III
judges specially constituted as a panel of advisers to the President.
On this approach, the system of review contemplated by the existing
order would be given an additional layer, consisting of people with a
degree of independence and charged with exercising the reviewing
functions I have just described. An approach of this kind would
maintain greater continuity with the process that the President has
outlined, because it would not take the adjudicative process outside of
the executive branch. But it would create an additional safeguard
against the risk of arbitrary or unjustified action.
---------------------------------------------------------------------------
\4\ Ex Parte Quirin, supra, allowed review of a broadly similar
order, at least to test the question whether the relevant tribunal had
the constitutional authority to conduct the trial. The President's
Order does not purpost, in unambiguous terms, to extinguish the writ of
habeas corpus, though it does restrict the remedies that defendants may
have. Under section 7(b)(2), ``the individual shall not be privileged
to seek any remedy or maintain any proceeding, directly or indirectly,
or to have any such remedy or proceeding sought on the individual's
behalf, in (i) any court of the United States, or any State thereof,
(ii) any court of any foreign nation, or (iii) any international
tribunal.'' The ambiguity lies in the precise meaning of ``any remedy
or maintain any proceeding,'' though admittedly these terms seem broad.
Cf Johnson v. Robison, 415 U.S. 361 (1976), narrowly construning terms
that seem broadly to foreclose judicial review. I cannot discuss these
complexities here, but it would be easy to imagine a judicial decision
not to assume habeas corpus to have been suspended without express
words to that effect, especially in light of continuing debates over
the President's authority to suspend the writ without express words to
that effect, especially in light of continuing debates over the
President's authority to suspend the writ without specific
congressional authorization.
---------------------------------------------------------------------------
This approach might be thought to raise a constitutional question
under Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 (1792), a case that
forbids Article III judges from serving in an official capacity as
executive branch officials, subject to review within the executive
branch. But under Hayburn's Case, it appears to be acceptable to
appoint judges in their personal rather than official capacity, and
that is the arrangement I am describing here. The basic goal is to
create a layer of review that would provide an expeditious but
additional safeguard. If Article III judges are not to be used, for
reasons of principle or policy, perhaps a panel of distinguished state
court judges, enlisted for the purpose, could be used instead.
Conclusion
When national security is threatened, the nation's highest priority
is to eliminate the threat, not to grant the most ample procedural
safeguards to those who have created the threat. But whenever the
United States is conducting a criminal proceeding, its highest
traditions call for a full and fair trial, as President Bush has
explicitly required. Those same traditions do not bar the use of
military commissions under extraordinary circumstances; but they do
require that steps be taken to ensure against gross unfairness and
conviction of innocent people. I have attempted to outline several
imaginable steps here. My basic suggestion is that it should ultimately
be possible to design a system that responds to the legitimate concerns
of the President and the nation, and protects the country's security,
while also complying with the basic requirements of procedural justice.
Senator Schumer. Thank you, Professor Sunstein, again, for
really excellent testimony.
Our final witness, and we appreciate your patience, is
Timothy Lynch. He is the Director of the Cato Institute's
Project on Criminal Justice, where he examines governmental
policy for their constitutionality and efficacy. Mr. Lynch
graduated from Marquette University School of Law, and since
joining Cato in 1991, he has published and spoken widely on a
variety of issues, criminal, constitutional law, and authored
several amicus briefs in the United States Supreme Court.
Mr. Lynch, like the others, your entire statement will be
read into the record.
STATEMENT OF TIMOTHY LYNCH, DIRECTOR, PROJECT ON CRIMINAL
JUSTICE, CATO INSTITUTE, WASHINGTON, D.C.
Mr. Lynch. Thank you, Mr. Chairman.
At the outset, let me say that I agree with those who have
said that the attacks of September 11th were not just crimes,
they were an act of war. Our country has been attacked by a
technologically sophisticated band of barbarians who hold a
philosophy that exhibits nothing but contempt for human life.
This country stands for the exact opposite of what they believe
in. And I think that these people attacked America because they
see our country as a symbol for respect for individual rights.
In my view, America is the greatest country in all of human
history because it is founded upon a Declaration and a
Constitution that acknowledge and enhance the dignity of
individual human life. We must respond to this new threat
without losing sight of what we are fighting for. Our troops in
Afghanistan are not just fighting to protect the property and
occupants of some geographical location here in North America.
They are defending the fundamental American idea that
individuals have the right to life, liberty and the pursuit of
happiness. Our government must fight any enemy, foreign or
domestic, who would destroy the rights of our people.
Having said that, I am disturbed by some of the actions
that our government has taken here at home in response to the
September 11th attacks. And I want to thank the Committee for
inviting me here today so that I can share some of these
concerns with you.
The Executive Order that President Bush signed on November
13th is very, very troubling. If there is one legal principle
that I think everybody in this room can agree upon, it is that
nobody in America is above the law. Not a Senator, not a
Supreme Court Justice, not even the President of the United
States. Not even, I might add, a President who enjoys very,
very high approval ratings in the polls. But with this
Executive Order, President Bush is announcing that he will not
only be the policeman, not only be the prosecutor, but the
legislator and the judge as well. Not just over Osama bin Laden
and his lieutenants in Afghanistan. Not only over other people
that our military might capture over there, but also over some
18 million people here on American soil. For anyone who is a
noncitizen, the President has announced that you have no right
to a jury trial, no right to a speedy trial, no right to a
public trial, no right to due process of law, no right to
habeas corpus, and no protection against unreasonable and
warrantless arrest.
In my judgment, there is no question that this order sweeps
far beyond the constitutional powers that are vested in the
Office of the President. My written testimony sets forth in
detail the constitutional flaws that I see in the executive
order, and I would request that it be made part of the record.
Thank you again, Mr. Chairman, for inviting me so that I
can share these concerns with the Committee.
[The prepared statement of Mr. Lynch follows:]
Statement of Timothy Lynch, Director, Project on Criminal Justice, Cato
Institute
I. Introduction
The horrific attacks of September 11th have made it
painfully clear that a technologically sophisticated band of medieval
barbarians have declared war on America. In my view, these barbarians
hold a nihilist philosophy and have nothing but contempt for human
life. They attacked America because our nation is seen as a symbol for
respect for individual rights. America is a unique nation in all of
world history because it is founded upon a Constitution that is
designed to acknowledge and enhance the importance and dignity of human
beings.
We must respond to this new threat without losing sight of what we
are fighting for. Our troops are not simply defending the property and
occupants of some geographical location. They are defending the
fundamental American idea that individuals have the right to life,
liberty, and the pursuit of happiness. Our government must fight any
foreign or domestic enemy who would destroy the rights of our people.
That said, I am disturbed by some of the actions taken by our
government in response to the September 11th attacks. And I
sincerely thank you for your invitation to come here and share my
concerns with you.
II. Bush Order Violates Separation of Powers
On November 13, 2001 President George Bush signed an executive
order with respect to the detention, treatment, and trial of persons
accused of terrorist activities. The president declared a national
emergency and claimed that Article II of the Constitution and the
recent Joint Resolution by Congress Authorizing the Use of Military
Force (Public Law 107-40) empowered him to issue the order.
In my view, the president cannot rely upon the Joint Resolution as
a legal justification for his executive order. That resolution simply
did not give the president carte blanche to write his own legislation
on whatever subject he deemed necessary. And because Article I of the
Constitution vests the legislative power in the Congress, not the
Office of the President, the unilateral nature of this executive order
clearly runs afoul of the separation of powers principle.
As I understand it, the primary purpose of this hearing is to
explore the question of whether Congress can ``codify'' or ``ratify''
the substance of President Bush's executive order. Thus, the remainder
of my statement and legal analysis will focus on other constitutional
issues raised by the substantive content of that executive order.
III. Executive Arrest Warrants Violate Fourth Amendment
The Fourth Amendment of the Constitution provides, ``The right of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.''
The arrest of a person is the quintessential ``seizure'' under the
Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980). In many
countries around the world, police agents can arrest people whenever
they choose, but in America the Fourth Amendment shields the people
from overzealous government agents by placing some limitations on the
powers of the police. The primary ``check'' is the warrant application
process. By requiring the police to apply for arrest warrants, an
impartial judge can exercise some independent judgment with respect to
whether sufficient evidence has been gathered to meet the ``probable
cause'' standard set forth in the Fourth Amendment. See McDonald v.
United States, 335 U.S. 451 (1948). When officers take a person into
custody without an arrest warrant, the prisoner must be brought before
a magistrate within 48 hours so that an impartial judicial officer can
scrutinize the conduct of the police agent and release anyone who was
illegally deprived of his or her liberty. See County of Riverside v.
McLaughlin, 500 U.S. 654 (1988).
It is important to note that while some provisions of the
Constitution employ the term ``citizens'' other provisions employ the
term ``persons.'' Thus, it is safe to say that when the Framers of the
Constitution wanted to use the narrow or broad classification, they did
so. Supreme Court rulings affirm this plain reading of the
constitutional text. See Zadvydas v. Davis, 121 S.Ct. 2491, 2500-2501
(2001); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Wong Wing v. United
States, 163 U.S. 228 (1896). Noncitizens have always benefitted from
the safeguards of the Fourth Amendment. See Au Yi Lau v. INS, 445 F.2d
217 (1971); Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (1976).
President Bush would like to be able to issue his own executive
arrest warrants. Under his executive order, once the president makes a
determination that a noncitizen may be involved in certain illegal
activities, federal police agents ``shall'' detain that person ``at an
appropriate location designated by the secretary of defense outside or
within the United States.'' See Executive Order, Section 3, Detention
Authority of the Secretary of Defense. Under the order, the person
arrested cannot get into a court of law to challenge the legality of
the arrest. The prisoner can only appeal to the official who ordered
his arrest in the first instance, namely, the president. The whole
purpose of the Fourth Amendment is to make such procedures impossible
in America. Thus, Congress cannot authorize the use of executive
warrants with mere legislation. See Lynch, ``In Defense of the
Exclusionary Rule,'' 23 Harvard Journal of Law and Public Policy 711
(2000).
IV. No Person Can be Deprived of Liberty Without Due Process
The Fifth Amendment to the Constitution provides that no person can
be ``deprived of life, liberty, or property, without due process of
law.'' While no alien has a right to enter the United States, once an
alien makes an entry into our country, his constitutional status
changes. Any person threatened with deportation has a constitutional
right to a fair hearing. See Landon v. Plasencia, 459 U.S. 21 (1982).
See also Ludecke Watkins, 335 U.S. 160 (1948) (Black, J., dissenting).
President Bush would like to be able to seize and deport people
without any hearing whatsoever. As noted above, under the executive
order, the president can have people arrested outside of the judicial
process and held incommunicado at military bases. Another section of
the order provides: ``I reserve the authority to direct the secretary
of defense, at anytime hereafter, to transfer to a governmental
authority control of any individual subject to this order.'' This means
that any person arrested could be flown to another country at any time.
The President can choose the time and country. The prisoner is barred
from filing a writ of habeas corpus. The problem, as Justice Robert
Jackson once noted, is that ``No society is free where government makes
one person's liberty depend upon the arbitrary will of another.''
Shaughnessy v. Mezei, 345 U.S. 206, 217 (1953) (Jackson, J.,
dissenting). Thus, Congress cannot enact a law that would let the
President override the due process guarantee.
One should not forget that the power to deport has been abused.
American citizens have been (intentionally or unintentionally)
deported. See, for example, ``Born in U.S.A.--But Deported,'' San
Francisco Chronicle, October 22, 1993. Some people have become pawns in
political machinations. Six Iraqi men who fought against Saddam Hussein
are fighting bogus deportation charges that are tantamount to a death
sentence should they be forced back to Iraqi territory. See Woolsey,
``Iraqi Dissidents Railroaded--by U.S.,'' Wall Street Journal, June 10,
1998.
The federal government has great leeway in establishing the various
grounds for deportation, but the only check on possible arbitrary and
capricious action is the due process guarantee. That guarantee should
not be nullified.
V. Congress Cannot Suspend the Trial by Jury Guarantee
Article III, section 2 of the Constitution provides, ``The Trial of
all Crimes, except in Cases of Impeachment; shall by Jury.'' The Sixth
Amendment to the Constitution provides, ``In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an
impartial jury.'' To limit the awesome powers of government, the
Framers designed a system where juries would stand between the
apparatus of the state and the accused. If the government can convince
a citizen jury that the accused has committed a crime and belongs in
prison, the accused will lose his liberty and perhaps his life. If the
government cannot convince the jury with its evidence, the prisoner
will go free. In America, an acquital by a jury is final and
unreviewable by state functionaries.
During the Civil War, the federal government set up military
tribunals and denied many people of their right to trial by jury. To
facilitate that process, the government also suspended the writ of
habeas corpus--so that the prisoners could not challenge the legality
of their arrest or conviction. The one case that did reach the Supreme
Court deserves careful attention.
In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Attorney
General of the United States maintained that the legal guarantees set
forth in the Bill of Rights were ``peace provisions.'' During wartime,
he argued, the federal government can suspend the Bill of Rights and
impose martial law. If the government chooses to exercise that option,
the commanding military officer becomes ``the supreme legislator,
supreme judge, and supreme executive.'' It is very important to recall
that that legal stance had real world consequences during that period
of our history. Some men and women were imprisoned and some were
actually executed without the benefit of the legal mode of procedure
set forth in the Constitution--trial by jury.
The Supreme Court ultimately rejected the legal position advanced
by the Attorney General. Here is one passage from that ruling:
``The great minds of the country have differed on the correct
interpretation to be given to various provisions of the Federal
Constitution; and judicial decision has been often invoked to
settle their true meaning; but until recently no one ever
doubted that the right to trial by jury was fortified in the
organic law against the power of attack. It is now assailed;
but if ideas can be expressed in words, and language has any
meaning, this right--one of the most valuable in a free
country--is preserved to every one accused of crime who is not
attached to the army, or navy, or militia in actual service.
The sixth amendment affirms that 'in all criminal prosecutions
the accused shall enjoy the right to a speedy and public trial
by an impartial jury,' language broad enough to embrace all
persons and cases. . .'' Milligan, pp. 122-123 (emphasis in
original).
The Milligan ruling is sound. The Constitution does permit the
suspension of habeas corpus in certain circumstances and Congress does
have the power ``To make Rules for the Government and Regulation of the
land and naval Forces;'' and ``To provide for organizing, arming, and
disciplining, the Militia.'' To reconcile those provisions with the
provisions pertaining to trial by jury, the Supreme Court ruled that
the jurisdiction of the military could not extend beyond those people
who were actually serving in the army, navy, and militia. That is an
eminently sensible reading of the constitutional text.
President Bush would like to be able to deny noncitizens on U.S.
soil of the benefit of trial by jury. Under his executive order, he
will decide who can be tried by jury and who will be tried by a
military commission. The only case in which the Supreme Court has
explicitly upheld the constitutionality of using military tribunals in
America to try individuals who were not in the military is Ex Parte
Quirin, 317 U.S. 1 (1942). Because the Quirin ruling carved out an
exception to the Milligan holding, it must be scrutinized carefully.
The facts in Quirin are fairly straightforward. In June, 1942
German submarines surfaced off the American coast and two teams of
saboteurs landed on our shores--one team in New York, the other team in
Florida. Those teams initially wore German uniforms, but the uniforms
were discarded after they landed on the beach. Wearing civilian
clothes, they proceeded inland to accomplish their mission. They were
all subsequently apprehended by the FBI.
President Franklin Roosevelt wanted these men to be tried before a
military commission so he ordered that the men be turned over to the
military authorities. FDR set up a military commission and decreed that
these prisoners would not have access to the civilian court system. The
prisoners were tried before the military commission and found guilty.
Although the Attorney General of the United States strenuously argued
that the Supreme Court had no jurisdiction over the case, the Court did
grant a writ of habeas corpus that had been filed with the court by the
attorneys for the prisoners.
The attorneys that had been assigned to defend the prisoners
contended that the military proceedings were inconsistent with the
Milligan precedent and that the Supreme Court ought to order a new
trial. The Supreme Court rejected that argument and sought to
distinguish the Milligan ruling from the circumstances found in Quirin.
The Court ruled that the jurisdiction of military commissions could
extend to people who are accused of ``unlawful belligerency.'' Under
the rationale of Quirin, anyone accused of being an unlawful
belligerent can be deprived of trial by jury. Even an American citizen
who is found out on U.S. soil can be tried and presumably executed by
U.S. military authorities as long as he or she is charged and convicted
of ``unlawful belligerency.''
In my view, the Quirin ruling cannot be reconciled with the
constitutional guarantee of trial by jury. The flaw that I see in
Quirin (and in the writings of those who defend Quirin) is circularity.
We are told that a prisoner is not entitled to trial by jury because he
is an unlawful combatant. The prisoner denies the charge and demands
his constitutional rights so that he can establish his innocence. The
government responds by diverting the case to a military tribunal. And,
we are told, the subsequent conviction confirms the fact that the
prisoner is ineligible to appeal his sentence to the civilian court
system. That is like saying that a convicted rapist should not be given
a DNA test because he is a convicted criminal.
Because of the hastiness of Quirin proceedings, the record in the
case is (intentionally or unintentionally) incomplete. The case does
not disclose the circumstances under which the prisoners were detected
and captured by the FBI. That omission obscures the legal issues that
are being debated presently.
For what it is worth, here is my own legal analysis of the
circumstances presented by Quirin. When the German u-boat surfaced off
of the American coast, our country was in a declared state of war
against Germany. Thus, our military forces would have been perfectly
entitled to destroy the u-boat and its occupants. Similarly, when the
saboteurs arrived on the beach, they could have been immediately shot
by military personnel or by any American. However, once the saboteurs
successfully made their way inland and infiltrated our society, their
legal status changed.
Those who resist that conclusion need to recognize the dilemma
posed by imperfect knowledge. A primary function of the trial process
is to determine the truth. Anyone who assumes that a person who has
merely been accused of being an unlawful combatant is, in fact, an
unlawful combatant, can understandably maintain that such a person is
not entitled to our constitutional safeguards. The problem, once again,
is that that argument begs the question under consideration. And the
stakes here are not trivial. The lives of human beings are potentially
on the line.
The basic rule ought to be that if the government wants to execute
or imprison anyone on U.S. soil, the government must proceed according
the procedures set forth in the Constitution.
There are, to be sure, some very limited exceptions. For example,
if our Navy planes had discovered and attacked the German u-boat off
the coast of Florida, and some German sailors abandoned their vessel
and swam for shore. Reaching the beach would not, in my view, trigger
constitutional protections for the sailors. Enemy personnel can be
taken into custody as POWs. The legal distinction that I have drawn--
whether a person has made an ``entry''--is not new; it is a sensible
distinction that also happens to run throughout U.S. immigration law.
See Zadvydas v. Davis, 121 S.Ct. 2491, 2500 (2001).
To conclude, Congress should not attempt to exploit the misguided
Quirin ruling and suspend the guarantee of trial by jury for people
here in the United States. Note, however, that policymakers may have
choices beyond criminal indictment and sheer helplessness. The federal
government, for example, already has the power to deport people who may
pose a threat to our national security. And the burden of proof in a
deportation proceeding is properly much lower than the standard of
proof in criminal trials.
VI. Forums for War Criminals Captured Overseas
There appear to be four possible legal forums to try suspected war
criminals that are captured overseas: (1) trial in a civilian court
here in America, according to our normal federal rules of criminal
procedure; (2) trial by a non-Article III court; (3) trial in a
international forum; (4) trial before a an ad hoc court based upon
Nuremberg principles. Let me briefly address these possibilities in
turn.
A criminal trial in a civilian court here in America does not
require extended discussion. This procedure was used to try the
Panamanian leader Manuel Noriega, the terrorists who bombed the World
Trade Center in 1993, and the bombers of the Oklahoma City federal
building in 1995.
A criminal trial in a non-Article III court here in America or
overseas has precedent. After World War II, some German and Japanese
POWs were accused of war crimes and were tried before military
tribunals. See Application of Yamashita, 327 U.S. 1 (1946).
In recent years there has been much discussion surrounding the
creation of an ``International Criminal Court'' (ICC). The idea here is
to establish a permanent court that can try individuals for war crimes,
genocide, and other crimes against humanity. To become effective, the
ICC Treaty requires 60 nations to ratify its provisions. Thus far, only
43 nations have signed off on the treaty. However, even if the ICC
treaty were ratified tomorrow, it provisions are not retroactive and
could not be applied against terrorists for the vicious attacks on the
World Trade Center. Thus, on closer examination, this is not a feasible
possibility. There are, in any event, many good reasons to withhold
U.S. support for such a tribunal. See Dempsey, ``Reasonable Doubt: The
Case Against the Proposed International Criminal Court,'' Cato
Institute Policy Analysis no. 311 (July 16, 1998).
A temporary, ad hoc, tribunal based upon Nuremberg principles is
another possibility. After World War II, the Allied Nations tried Nazi
war criminals in Nuremberg. At present, the former dictator, Slobodon
Milosevic, is being tried before the International Criminal Tribunal
for the Former Yugoslavia, which is also based on Nuremberg principles.
Because a regular criminal trial in the United States is
straightforward and the ICC seems unrealistic, let me briefly explain
why I think a trial by an ad hoc tribunal based upon Nuremberg
principles may be the best forum.
First, government prosecutors can avoid habeas corpus appeals in
the U.S. court system, which absent congressional action, will almost
certainly develop post-trial.
Second, a reasonable argument can be made that bona fide
intelligence information should not have to be disclosed in a public
forum. A non-Article III court proceeding must still comport with due
process and intelligence sources likely would have to be disclosed in
order to counter meritorious objections from defense counsel, and,
thus, the possibility of a lengthy retrial.
VII. Conclusion
In sum, my view is that war criminals captured on U.S. soil must be
tried in our civilian court system. War criminals captured overseas can
be tried in a civilian court here in the United States or by a
Nuremberg-type tribunal.
Senator Schumer. Thank you, Mr. Lynch.
First I want to thank, I imagine my panel members would,
this was excellent testimony. You did not just read what you
had come to give us, but tried to respond to the dialog and
debate that had preceded you, and I want to thank all of you
for it.
The only other general comment I would make, and it relates
a little bit to what Professor Sunstein said, and that is that
there seems to be, not that everyone agrees on everything, but
there seems to be a little more consensus when you start asking
the specific questions. The divisions are less broad than just
the words ``secret military tribunal'', whether you agree with
him or disagree. And I guess I would just say that the
administration would have been better served, instead of just
announcing in broad brush that they were going to do this, but
by issuing specific rules, and then perhaps a lot of the parade
of horribles that people are worried about would not have been
the focus of the debate. And I just hope that they will issue
those rules quickly, so that we can actually debate some real
issues, not potential worries of what people have, and I would
urge them to do that.
Let me ask a couple of points that both Professor Tribe and
Sunstein made, but I would like to ask General Nardotti and Mr.
Terwilliger if they would agree. Would you both agree that
these tribunals should be limited to violations of the laws of
war as opposed to other broader--I think Professor Sunstein
mentioned this. Mr. Terwilliger?
Mr. Terwilliger. In general, yes, although what defines a
violation of the law of war and the extent of responsibility
for that, probably is something that could be subject to a lot
of discussion and debate, but as a general proposition, of
course.
Senator Schumer. How about you, Major Nardotti?
General Nardotti. I agree, Mr. Chairman.
Senator Schumer. You agree. What about the idea of people
arrested within the boundaries of the United States; should
these tribunals apply to them ever, once in a while, or
whatever you think? Again to Mr. Terwilliger and Major
Nardotti.
Mr. Terwilliger. I agree with most of what Professor
Sunstein said, with that exception, Mr. Chairman, and for this
reason. While I think the circumstances are different for
someone who commits acts here that may make them subject to the
order, than for someone who commits acts abroad, nonetheless,
it is the nature of the acts that render someone subject to the
order--the what, rather than the where. The difference is that
under the where, the President may have the additional option
of using, in appropriate cases, the criminal justice system.
That use, however, may be inappropriate for reasons we, I
think, have a consensus to recognize.
Senator Sessions. But you would entertain the possibility
of, say, an illegal immigrant who is engaged in a major act of
terrorism, but apprehended within the boundaries of the United
States, still being subject to a military tribunal?
Mr. Terwilliger. Yes, yes, Mr. Chairman, and for one
additional important reason. Many of the people who appear to
be responsible for this, in essence lied their way into the
United States. I do not know why we should give them the
benefit of their fraudulent bargain in conning their way into
the country and cloak them with constitutional rights,
including the right to a trial in a civilian court.
Senator Schumer. And I apologize, Major General Nardotti.
You have such presence, I assumed you were a general and will
go into your second rank, but do you agree with Professor
Terwilliger?
General Nardotti. I agree that under circumstances where it
is clear or you can establish that they fall into the category
of unlawful combatants, they entered the country and were not
wearing uniforms or insignia of their armed force, they do not
carry arms openly or they do not comport of conform with the
laws of war in their operational conduct, by their conduct they
have placed themselves in that category, and I believe--and in
fact, an even more compelling case could be made that they
should be subject to the military tribunals than others caught
out on the battlefield in open--
Senator Schumer. Would our other three witnesses disagree
with what Mr. Terwilliger and General Nardotti said?
Mr. Tribe. I agree.
Mr. Sunstein. I agree.
Mr. Lynch. I disagree, Mr. Schumer. In my view, almost any
person captured on U.S. soil would be entitled to the
constitutional procedure of jury trial. There might be some
limited exceptions to that. I do not think bare entry into the
country would be enough to trigger constitutional protections,
but almost anybody captured here on U.S. soil, I think the Bill
of Rights is triggered for those people.
Senator Schumer. Now, one just other one that was proposed
by Professor Tribe. His view was that appeal to the Secretary
of Defense and the President is insufficient. There needs to be
some form of judicial appeal beyond just habeas. Mr.
Terwilliger, what do you think of that?
Mr. Terwilliger. Well, I have a great deal of respect for
Professor Tribe, but he is wrong once in a while. And I think
on this one the reason he is wrong is because that is mixing
two separate bodies of law. The authority to conduct military
tribunals, without going into a long explanation, arises
completely separate from the jurisdiction of Article III courts
with the exception of the writ of habeas corpus. And for that
reason, I do not think we can sort of design a customized
constitutional procedure to accomplish that.
Senator Schumer. General Nardotti?
General Nardotti. Since we do not have the details of the
procedures as they would apply to the review process,
obviously, that will shed important light on this particular
aspect. I believe, given the practicalities of the situation,
if there are any number of cases reviewed by the Secretary of
Defense and the President who have many other things that they
need to be devoting their time to, they are going to need a
great amount of assistance, and if there were established some
type of review panels as part of that process, I think that
would alleviate some of the concerns, but I would basically
agree in terms of the legal issues that Mr. Terwilliger has
cited, I would agree.
Senator Schumer. Let me ask now Professor Sunstein,
Professor Tribe and Mr. Lynch. I guess it was Professor Koh
wrote an article where he basically said we ought to use
civilian courts, there ought to be a strong, strong lean--I do
not know if he said absolutely in every case; he did say you
could use CIPA and other secrecy procedures, but there ought to
be a strong lean to using civilian courts in just about every
situation that this war confronts us. And what is your view of
that basic view? Why don't we go right to left?
Mr. Sunstein. I think that's excessive so long as the
procedures in the military commissions are full and fair, and
if you can ensure the essentials of procedural justice and an
unbiased tribunal, as we did, witness the 85 percent conviction
rate, not 100 percent, not close to it, after World War II.
There is no reason to insist on civilian courts given the
legitimate interest in avoiding a circus atmosphere, in
promoting secrecy and ensuring expedition.
Senator Schumer. Professor Tribe.
Mr. Tribe. Well, I agree with what Professor Sunstein has
said. I think you may be over reading what Professor Koh,
former Assistant Secretary of State said. As I understand his
view, it is that we ought not simply to assume that the
civilian trials will always be unsuitable. I think there is a
difference in degree in the presumption, but I do not think he
believes that the Constitution requires it and I certainly do
not think the Constitution requires it.
Senator Schumer. But would you agree with him in his
general view that civilian--
Mr. Tribe. Well, certainly not for people actively involved
in major acts of war against the United States, but I am not
sure he would think his view applies there either.
Senator Schumer. He is not here, so we will--
Mr. Tribe. I think it is the breadth of this Order that
invites people to have broader differences. I very much agree
with Cass Sunstein, that when you get down to the details, not
only as to the procedure, but as to what it was really intended
to have this sort of Damocles hang-over. Not all 18 million
resident aliens, but a very tiny number that could be much more
precisely defined.
Senator Schumer. So if you were advising the
administration, you would say, get some specifics out here
pretty quickly?
Mr. Tribe. Although in its defense--it does not need me to
defend it--but when you said you thought they should have come
out with the details, I think they should have come out with
something that is more like what an agency does, an NOPR,
notice of proposed rule-making. That is, if they had done
originally what White House Counsel and Secretary Rumsfeld have
done in suggesting that, they're just floating a trial balloon
here; they had made clear it was not an order--but it acturally
is an order. Given what they did, I think they are stuck with
it, and the Congress ought to fix it if they will not.
Senator Schumer. Mr. Lynch, you get the last word on the
question that I had asked of the two, and you can respond to
Professor Tribe as well if you would like.
Mr. Lynch. I haven't seen Professor Koh's article, but I
too would lean very heavily towards a civilian trial. But that
is not to say that it is the only option. I think, in the
alternative, what policy makers should be looking at is a
tribunal, along the lines of the Nuremberg trials. I would lean
heavily towards a civilian trial, but I think that that is the
next best alternative which Congress should be looking at.
Senator Schumer. Thank you. I want to thank all the
witnesses. My time is up.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
You know, about the issuing a final and complete Order, Mr.
Chertoff suggested, and I think Rumsfeld, the Secretary of
Defense, suggested Sunday in a TV interview, that this does
allow us the time to have some debate and help the Department
of Defense decide precisely what ought to be in the Order. If
we had issued it incomplete, I suspect the critics would have
complained that it was not perfect and they would not have any
chance to have any input in it. So I think it is better to put
it out publicly, let the whole country have a debate on it. Let
us go back to the history and the Constitution and discuss
these matters, and I believe that is a healthy approach.
With regard to the question, Mr. Lynch, of trying everyone
that has any residency in this United States in a civil trial
and never be subjected to a military commission, which you
propose, the Quirin case specifically offered the opinion, did
it not, that citizens could be even tried. So do you agree that
the Quirin case did say that?
Mr. Lynch. Yes, I agree that that is an implication from
the Quirin case. That means that we could have a new Executive
Order, perhaps next month, that would extend the class of the
people subject to the order from noncitizens here on U.S. soil,
to citizens, and to justify that extension by saying Quirin
covers citizens.
Senator Sessions. And the President, by the Order he
issued, limited that to noncitizens, and those who are
connected to al Qaeda and/or international terrorism, is a
fairly, I think, limited pool of people, and that would not
cover 18 million people, would it, Mr. Lynch?
Mr. Lynch. Well, the point is, that the Executive Order
covers any noncitizen here on U.S. soil. Any time the
government accuses somebody of being an ``unlawful
belligerent,'' then that person has essentially been stripped
of many of the constitutional protections that I have listed
here.
Senator Sessions. Well, the status of the case would have
to be that he would have to be connected, or she, would be
connected to international terrorism, I think, and I think it
is unfair and inflammatory to suggest that we have got 18
million people that are here in this country that are subject
to being tried in a military commission when we give resident
aliens of all kinds all the panoply of constitutional rights
that citizens get, and I just would take exception to that.
Mr. Tribe, on the history of the commission, in your
testimony in your footnote, you state, ``Ex Parte Quirin
mistakenly invoked by the White House as precedent, the
military tribunal's jurisdiction, was explicitly provided by
Congress.'' In other words, they were saying that it was
explicitly provided by Congress within the Order.
Mr. Tribe. In Quirin they found explicit authorization. I
am only saying that Quirin is therefore not very strong
authority in this circumstance where the argument is much
weaker that Congress has really authorized exactly this.
Senator Sessions. Well, Article 15 of the Articles of War
that was relied on in the Quirin case, which gave use under the
Military Orders, that stated that the provisions of these
articles conferring jurisdiction on courts-martial shall not be
construed as depriving military commissions of concurrent
jurisdiction in respect of offenders or offenses that by the
law of war may be lawfully triable by military commissions. So
it affirms the right of military commissions to try offenses
that by the law of war would be lawfully triable by such
commissions.
Mr. Tribe. Well, Senator Sessions, Article 15 of the Laws
of War is very similar. Basically it was codified in Section
821 of the UCMJ, and that is not quite enough, because all that
says is that the jurisdiction of courts-martial does not
preclude these other things. That is why the court in Ex Parte
Quirin did not rely solely on Article 15, but relied also on
other legislation by Congress which essentially it interpreted
as saying that once there is a declaration of war, the
President has all of this authority. I think the court was
right in that part of Ex Parte Quirin, but that just points out
that it does matter whether we have a full-fledged declaration
of war or not.
Senator Sessions. Well, I really appreciate your
comprehensive view of this, and you mentioned this as one of
your two concerns, this very point I believe. It strikes me
that the Quirin case did rely on the Articles of War, did it
not?
Mr. Tribe. In part.
Senator Sessions. In part. And then when the Articles of
War were passed by--or the UCMJ recodified the Articles of War
in virtually identical language, the Congress would have been
aware of the historical precedent of Lincoln and Roosevelt, and
that therefore we would normally expect that they knew what
they were doing in actually approving military commissions,
would we not?
Mr. Tribe. But, Senator Sessions, that very history shows--
and I think the debate about the joint resolution of September
18th shows, that this Congress knows the difference between
declaring war, which triggers a whole panoply of things, and
authorizing the President to use force for a particular
objective. That is what this joint resolution did. It did not
quite declare war. I think we are ``at war'' in a sense
sufficient to make the laws of war applicable once there is an
authorization for the commissions, and that authorization can
come either by a declaration of war or by a more specific
authorization.
Senator Sessions. Well, I think the Prize cases says that
essentially war is determined by the people who make it, and
that it can be a unilateral declaration of war by the act of
the attacking party.
Mr. Tribe. Certainly. But, Senator Sessions, the issue in
the Prize cases was whether Abraham Lincoln was in violation of
the Constitution for waging war to prevent the dissolution of
the Union. It was not whether, without congressional
authorization, he could set up military commissions. When that
issue arose in Ex Parte Milligan, the Court indicated was that
there was no authorization by Congress for suspending the writ
of habeas corpus, or for setting up military commissions, to
try people like Milligan, and I say if it was good enough for
Lincoln, it should be good enough for Bush.
Senator Sessions. Well I think it is. I think the
authorization is there, and I would just plainly disagree with
you. I think the UCMJ, as recodified, is clear authority, in
addition to the probable inherent authority as Commander-in-
Chief to protect the country from attack.
Thank you.
Senator Schumer. Thank you, Senator Sessions.
I am going to recognize Senator Feinstein, and just going
to step out for a minute.
Senator Feinstein. Thanks very much, Mr. Chairman.
It is good to see you again, Professor Tribe, Professor
Sunstein, and gentlemen. Professors Tribe and Sunstein and I
have worked on other things together, and I wanted to ask the
two of you, just to further elaborate on this. When we passed
the authorization legislation, it carried with it the full
powers of a declaration of war. We were attacked by foreign
elements on our soil. The Congress responded by giving the
President the full authorization to use force against these
elements, these elements related to the September 11th attacks.
We were not declaring war against a country because there was
not a country against which we could declare war, but against
those elements, namely terrorists. Therefore, I do not
understand why, this is not absolutely equal in standing to a
full declaration of warn.
Mr. Sunstein. I do tend to think that insofar as we are
talking about military commissions, your question points in the
right direction. Certainly about the Supreme Court's likely
resolution of the question that Professor Tribe and Senator
Sessions were disagreeing about. That is, my reading of
Quirin--and here I have a mild disagreement with Professor
Tribe--is that the authorization of force alongside 10 U.S.C.
821, invoked by Senator Sessions, as understood in Quirin, very
broadly understood in Quirin as an authorization, would be
taken by a majority, strong majority of the current Court to
authorize the use of military commissions.
Having said that, I do not believe that Senator Sessions
and Professor Tribe would disagree on the following question,
which is, would it be better from this constitutional
standpoint and from the standpoint of separation of powers, for
there to be expressed rather than somewhat vague congressional
authorization of the sort that you, Senator Feinstein, have
just referred to, and of the sort that Senator Sessions earlier
referred to. So basically I think you are correct, that as a
legal matter, the authorization of force in September would
carry the full effect of a declaration of war, though there's
there was authorization, right after the South attempted to
secede, Congress reason from my constitutional standpoint about
being mildly uncomfortable about that. The only thing that
could be said, I think, in defense of the authorization of war,
as opposed to a declaration, is exactly what you have said, and
it is a very important point, who are we going to declare war
against? We have been attacked not by a nation, but by
individuals and groups who have violated the laws of war.
Senator Feinstein. Professor Tribe?
Mr. Tribe. Certainly as a matter of predicting what the
current Court would do, I think the odds are very good that it
would defer to the Chief Executive. One of the points that I
have made both in my written testimony and in my recent article
is that the Congress should itself recognize the gravity of the
constitutional responsibility that it has before it, especially
given the tendency of the Court to defer overwhelmingly to the
Executive in wartime. Any suggestion that the Court will answer
the question for us without such deference would be a mistake.
I do think that because we are not grappling with a
sovereign nation, a classic declaration of war is not what
would have been called for. That is why I think Congress did a
sensible thing in crafting something narrower, but it crafted
it narrowly enough so that I think a cloud hangs over the
legitimacy of these commissions. That is, Congress could have
made it clear, and still could, that trial by military
commissions in certain limited circumstances is authorized.
That would eliminate any risk that any of the al Qaeda
lieutenants, if convicted by one of these commissions, would
succeed in being released on habeas. Think of the international
embarrassment for this country if in the pleasant discussion
that we are having in this room, between Senator Sessions,
Professor Sunstein, and me, if that converts into the issuance
of a writ of habeas corpus by some rather more liberal judge
than the current Supreme Court, out in the Ninth Circuit. He
might get slapped down, but in the meantime it is not a healthy
thing for this country to have that cloud hanging over this
issue. There also was discussion on the floor, I think more in
the House than on the Senate side, about the reluctance to
wheel out the heavy artillery of a declaration of war, because
war has been declared on non-nations before, on the Barbary
pirates for example, but to wheel out that artillery and
automatically trigger a whole range of consequences in the
statute books of the United States was something Congress
wasn't ready to do.
Given that, it seems to me that there's ambiguity about
whether what Congress did do carried the day in terms of these
commissions.
Senator Feinstein. So, quickly before the red light, what
is your remedy?
Mr. Tribe. The remedy is for this Congress, although it may
be unrealistic, given the differences of view, but for this
Congress to authorize the use of military commissions in very
narrowly defined circumstances involving violations of the laws
of war, which can be more precisely codified--
Senator Feinstein. As opposed to an Executive Order?
Mr. Tribe. As opposed to merely an Executive Order.
Senator Feinstein. So you are saying that if the Congress
essentially authorizes it, states the scope and the--
Mr. Tribe. That is right, and leaves to the Executive
Branch a great deal of room. Certainly it has some room that
cannot be restricted by this Congress. And by the way, I have
not confused the Commander-in-Chief issue with the Article III
issue. I did not say it is because of Article III that people
should have a right to appeal to someone other than their
accuser; it was because of fundamental fairness.
Senator Schumer. We have zero minutes left on a vote, so I
appreciate--
Senator Feinstein. If I could just say one thing.
Senator Schumer. Please.
Senator Feinstein. Perhaps they would extend. They do for
everybody else. Perhaps for us they would extend it a few more
minutes.
If I could just ask one quick question. In Professor
Sunstein's paper, and he mentioned this in his oral remarks,
that a standard of proof beyond the preponderance of evidence,
but ranging from clear and convincing to beyond a reasonable
doubt, I the do not understand how you can say we did an
authorization--and this is one of the points we wanted to
address in it--how we could just simply make up a standard of
proof.
Senator Schumer. And do it succinctly if you could,
Professor.
Mr. Sunstein. As part of the legislative power, it would be
just fine so long as it met with the constitutional standards
and certainly the beyond a reasonable doubt standard would, and
almost certainly the clear and convincing evidence standard
would, so it would be part of the legislation setting up the
tribunals.
Senator Feinstein. Do you gentlemen have a suggestion?
Mr. Tribe. ``Clear and convincing'' I think is more
realistic in the wartime situation than ``beyond a reasonable
doubt.'' And I also think that when you say I would rather have
100 innocent ones go free, that's not true if they have access
to bioterrorism. It seems to me the ratio is a little different
here.
Senator Feinstein. That is correct. Do you agree?
Senator Schumer. A statement from the ACLU and letters from
the Parkway Christian Fellowship and St. Mary's University will
be included in the record.
And on that note, we will conclude.
We are going to miss our vote. Thank you. You were a great
panel, and I think really helped. The hearing is adjourned.
[Whereupon, at 12:45 p.m., the committee was adjourned.]
DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE
DEFENDING AGAINST TERRORISM
----------
TUESDAY, DECEMBER 4, 2001 (AFTERNOON SESSION)
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:00 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Russell
Feingold, presiding.
Present: Senators Feingold, Durbin, Hatch, and Sessions.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Senator Feingold. The hearing will come to order. We, I
believe, have a vote at about 2:20 or 2:25, so I will make an
opening statement and if the ranking member is here, we will do
that as well and perhaps be able to get through the first
panel, at which time I will recess and we will come back and
begin with the second panel as soon as we possibly can.
Welcome to the third of four hearings on ``DOJ Oversight:
Preserving our freedoms While Defending Against Terrorism.''
This hearing will focus on the issue of individuals detained in
connection with the September 11 attack investigation. This
hearing will explore the importance of the Attorney General's
providing a full accounting of who is being detained and why,
as well as other basic information about the status of
individuals detained since September 11. We will also consider
the Department of Justice's plan to question 5,000 individuals
of Arab and Muslim backgrounds in connection with the
investigation.
The terrorists struck the heart of our nation's financial
capital when they struck New York City and took the lives of
thousands of Americans. In the shadow of where the World Trade
Center once stood is the Statue of Liberty, standing tall and
proud with a torch raised to the skies. She shines her light on
a city and a nation struggling to cope with this tragedy and
working to prevent any such horrific act from ever happening
again.
Most important, though, Lady Liberty is a reminder of why
Americans and immigrants, who, like my forefathers and those of
probably everyone in this room, arrived on our shores, desiring
to be Americans one day. They love our nation and are proud to
be a part of it. Her beacon at the golden door to America is a
beacon to freedom, a beacon of hope, and a beacon of justice.
I fear that America's beacon of freedom and justice is
threatened as we face almost daily revelations of extraordinary
steps by the Justice Department that snub the rule of law and
threaten to erode fundamental constitutional rights.
As my colleague, Senator Kennedy, eloquently stated last
week, no Senator and no American has a monopoly on wanting to
bring the perpetrators of the September 11 attacks to justice
and doing all we can to prevent future acts of terrorism and
the loss of American lives. I fully support our law enforcement
officials in their tireless efforts to leave no stone unturned
as they strive to protect our nation from future attacks.
But as we move forward in our fight against terrorism,
Congress, and especially this Committee, has a responsibility
to ensure that the constitutional foundations of our nation are
not eroded. The beacon of freedom must continue to shine on our
nation.
During the course of the investigation of the September 11
attacks, the Justice Department has detained over 1,100
individuals. The Justice Department recently began releasing
some information about the people who have been detained on
Federal criminal charges or immigration violations, but we
still do not have a full picture of who is being detained and
why, and there are reports that detainees have been denied
their fundamental rights to due process of law, including
access to counsel, and have suffered serious bodily injury. We
simply cannot tell if those cases are aberrations or an
indication of systemic problems if the Justice Department will
not release further information about those being held in
custody.
The Attorney General has repeatedly and strongly asserted
that he is acting with constitutional restraint, but the
Department of Justice has a responsibility to release
sufficient information about the investigation and the
detainees to allow Congress and the American people to decide
whether the Department has acted appropriately and consistently
with the Constitution.
We will hear today from Ali Al-Maqtari, who was detained by
Federal officials in Tennessee for almost two months for a
minor immigration violation that would not usually merit
detention. We will also hear from his lawyer, Michael Boyle,
who will discuss his experience in representing Mr. Al-Maqtari
and the experience of his colleagues who are representing
detainees.
Following Mr. Boyle, we will hear from Mr. Goldstein, who
will talk about the challenges he faced in his representation
of Dr. Al-Badr Al Hazmi, a radiology resident in San Antonio,
Texas, who was detained following the September 11 attacks for
nearly two weeks.
Finally, Nadine Strossen of the American Civil Liberties
Union will talk about why disclosing basic information about
the status of detainees is imperative and comment on the
implications of questioning over 5,000 young men from Arab and
Muslim countries.
This Friday, December 7, our nation will mark the 60th
anniversary of the bombing of Pearl Harbor, a day that
President Roosevelt then said ``would live in infamy.'' While
our nation made great strides for mankind as a result of our
victory in World War II, we also lost something of ourselves
when we interned over 120,000 Japanese Americans and thousands
of German and Italian Americans. We later came to regret those
acts.
I do not suggest that what is now going on rivals that
deplorable action taken in the name of national security, but I
do think we need to learn a lesson from this history to
question our government when it appears to be overreaching.
Such questions are not unpatriotic and they should not be
viewed as an inconvenience by the executive branch. They are a
crucial tool for Congress to play its constitutional role in
protecting the great heritage of this country and the rule of
law.
[The prepared statement of Senator Feingold follows:]
Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of
Wisconsin
Welcome to the third of four hearings on DOJ Oversight: Preserving
Our Freedoms While Defending Against Terrorism. This hearing will focus
on the issue of individuals detained in connection with the September
11th attacks investigation. This hearing will explore the
importance of the Attorney General providing a full accounting of who
is being detained and why, as well as other basic information about the
status of individuals detained since September 11th. We will
also consider the Department of Justice's plan to question 5,000
individuals of Arab and Muslim backgrounds in connection with the
investigation.
The terrorists struck the heart of our nation's financial capitol
when they struck New York City and took the lives of thousands of
Americans. In the shadow of where the World Trade Center once stood is
the Statue of Liberty, standing tall and proud, with a torch raised to
the skies. She shines her light on a city and a nation struggling to
cope with this tragedy and working to prevent any such horrific act
from ever happening again.
Most important, Lady Liberty is a reminder of why Americans, and
immigrants, who like my forefathers and those of probably everyone in
this room, arrived on our shores desiring to be Americans one day, love
our nation, and are proud to be a part of it. Her beacon at the golden
door to America is a beacon of freedom, a beacon of hope, and a beacon
of justice.
I fear that America's beacon of freedom and justice is threatened,
as we face almost daily revelations of extraordinary steps by the
Justice Department that snub the rule of law and threaten to erode
fundamental constitutional rights.
As my colleague Senator Kennedy eloquently stated last week, no
Senator and no American has a monopoly on wanting to bring the
perpetrators of the September 11th attacks to justice and
doing all we can to prevent future acts of terrorism and the loss of
American lives. I fully support our law enforcement officials in their
tireless efforts to leave no stone unturned as they strive to protect
our nation from future attacks.
But as we move forward in our fight against terrorism, Congress,
especially this Committee, has a responsibility to ensure that the
constitutional foundations of our nation are not eroded. The beacon of
freedom must continue to shine on our nation.
During the course of the investigation of the September 11 attacks,
the Justice Department has detained over 1,100 individuals. The Justice
Department recently began releasing some information about the people
who have been detained on federal criminal charges or immigration
violations. But we still do not have a full picture of who is being
detained and why. And there are reports that detainees have been denied
their fundamental right to due process of law, including access to
counsel, and have suffered serious bodily injury. We simply cannot tell
if those cases are aberrations or an indication of systemic problems,
if the Justice Department will not release further information about
those being held in custody.
The Attorney General has repeatedly and strongly asserted that he
is acting with constitutional restraint. But the Department of Justice
has a responsibility to release sufficient information about the
investigation and the detainees to allow Congress and the American
people to decide whether the Department has acted appropriately and
consistent with the Constitution.
Within a week of September 11th, the Department began
releasing information on the numbers of people who have been detained
as part of the investigation. On October 31st of this year,
I, along with Chairman Leahy, Senator Kennedy and Representatives
Conyers, Nadler, Scott, and Jackson-Lee, sent a letter to the Attorney
General requesting information about the detainees. We wanted to know
who is being detained and why; the basis for continuing to hold
individuals who have been cleared of any connection to terrorism; and
the identity and contact information for lawyers representing
detainees. We also wanted information regarding the government's
efforts to seal proceedings and its legal justification for doing so.
In early November, the Department announced it would no longer
release comprehensive tallies of the number of individuals detained in
connection with the September 11 investigation and that it would limit
its counts to those held on federal criminal or immigration violations.
Thus, it would no longer keep track of those held on state or local
charges, nor would it indicate how many people have been released after
being detained.
Just before Thanksgiving, the Department provided copies of the
complaints or indictments for about 46 people held on federal criminal
charges. It also provided similar information on about 49 people held
on immigration violations, but redacted their identities. Last week,
the Attorney General announced the number and identities of all persons
held on federal criminal charges and the number, but not the
identities, of persons held on immigration charges. The total number of
detainees is roughly 600 individuals. But the Department continues to
refuse to identify the 548 persons held for immigration violations, or
provide even the number of material witnesses, or the number and
identities of persons held on state or local charges.
I am not satisfied with this response but we now know a lot more
about the detainees than we knew at the end of October. This
illustrates the crucial role of congressional oversight as a check on
the executive branch.
The Department has cited a number of reasons for its refusal to
provide additional information. Very troubling is the Department's
assertion that those being held for immigration violations have
violated the law and therefore ``do not belong in the country.'' But
without full information about who is being detained and why, we cannot
accept blindly an assertion that each detainee does not deserve to be
in the country. Do all of these immigration violations merit detention,
without bond, and deportation? I doubt it, as some are very minor
violations that under normal circumstances could be cleared up with a
phone call. I hope that today's hearing will shed some light on this
issue.
The Department also says it is protecting the privacy of the
detainees by refusing to release their identities, and they are free to
``self-identify'' if they want. But as we will hear this afternoon,
some of these individuals have been denied access to lawyers or family,
for days or weeks at a time. So, it rings hollow to suggest that
detainees are in a position to self-identify. My strong sense is that
people in detention cannot just call the New York Times or this
Committee if they want the public to know the circumstances of their
cases. Our witnesses today should help us to assess whether the option
of self-identification is a real option.
As this hearing will bring into focus, there are concerns that the
Department's investigation has employed a clumsy, dragnet approach,
which is increasingly proving to be offensive to the Arab and Muslim
American communities and has come under criticism by a number of highly
respected former FBI officials. I sincerely hope that the extraordinary
effort to question immigrants from certain Arab and Muslim countries
does not become counter-productive. In a rush to find terrorists, the
Department appears to have disrupted the lives of hundreds of people,
most of whom will prove to be wholly innocent of any connection to
terrorism. Just as important, the trust of communities whose help is so
crucial to preventing future attacks is being severely undermined.
We will hear today from Ali Al-Maqtari who was detained by federal
officials in Tennessee for almost two months for a minor immigration
violation that would not usually merit detention. We will also hear
from his lawyer, Michael Boyle, who will discuss his experience in
representing Mr. Al-Maqtari and the experience of his colleagues who
are representing detainees. Following Mr. Boyle, we will hear from Mr.
Goldstein, who will talk about the challenges he faced in his
representation of Dr. Al Badr Al Hazmi, a radiology resident in San
Antonio, Texas, who was detained following the September 11 attacks for
nearly two weeks. Finally, Nadine Strossen, of the American Civil
Liberties Union, will talk about why disclosing basic information about
the status of the detainees is imperative and comment on the
implications of questioning over 5,000 young men from Arab and Muslim
countries.
This Friday, December 7th, our nation will mark the 60th
anniversary of the bombing of Pearl Harbor, a day that President
Roosevelt then said ``would live in infamy.'' While our nation made
great strides for mankind as a result of our victory in World War II,
we also lost something of ourselves when we interned over 120,000
Japanese Americans and thousands of German and Italian Americans. We
later came to regret those acts. I do not suggest that what is now
going on rivals that deplorable action taken in the name of national
security. But I do think we need to learn a lesson from this history to
question our government when it appears to be overreaching. Such
questions are not unpatriotic and should not be viewed as an
inconvenience by the Executive Branch. They are a crucial tool for
Congress to play its constitutional role in protecting the great
heritage of this country and the rule of law.
I will now turn to the ranking member, Senator Hatch, for his
opening statement. Before I do, I want to thank the Chairman and
Senator Kennedy for their leadership on this issue. I also want to
thank Senator Hatch for his cooperation with Senator Leahy and myself
in putting this hearing together.
Senator Feingold. Whenever Senator Hatch arrives, perhaps
after the break, we certainly will turn to him for his opening
statement. I also want to thank the chairman and Senator
Kennedy for their leadership on this issue and I, of course,
want to thank Senator Hatch for his cooperation with Senator
Leahy and myself in putting this hearing together.
I think this gives us an opportunity, then, to begin the
first panel. I would ask Mr. Viet Dinh to join us.
Our first witness this afternoon is Mr. Viet Dinh, the
Assistant Attorney General for Office of Legal Policy. The
Justice Department asked that Mr. Dinh be permitted to testify
at this hearing to give the Department's views. He has served
as Assistant Attorney General since May 31 of this year. Prior
to his government service, he was a professor of law at
Georgetown University Law Center. He also served as special
counsel to the Senate Whitewater Committee and to Senator
Domenici during the impeachment trial of President Clinton.
I welcome you, sir, but I would ask that you limit your
oral remarks, if you could, to five minutes so that we can make
sure we have time to get to the next panel, in light of the
problem with the vote interrupting us for some time. I
appreciate your being here, and certainly, without objection,
your full written statement will be placed in the record.
Mr. Dinh?
STATEMENT OF VIET D. DINH, ASSISTANT ATTORNEY GENERAL, OFFICE
OF LEGAL POLICY, UNITED STATES DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Mr. Dinh. Thank you very much, Senator, members of the
Committee, and I thank you for putting the full statement in
the record. Let me say first that it is not an inconvenience
for me to be here. Rather, it is an honor, and thank you for
having me here to answer the questions that the Committee has
and continues to have and it is a great opportunity to answer
some of these questions.
Your opening statement was quite moving, and so if I may, I
will enter my written statement into the record and just very
briefly touch upon the theme that you started with your opening
statement about the nature of liberty in America. It is a
question that has revolved in my mind since September 11, and
more honestly, September 12, because September 11 was a day of
numbness for me.
But on September 12, I began to ask the question that I
think most Americans have started asking themselves in this
period also. That is, why? Why is it that these zealots are
willing to give up their own lives in order to take the lives
of thousands of innocent Americans and freedom-loving people
around the world in that horrendous attack of September 11? Is
it because we are somehow better than the people of the world?
I do not think so.
Americans--look around this room--Americans are the people
of the world, as you say. The inscription at the base of the
Statue of Liberty, it says, ``Give me your tired, your poor,
your huddled masses.'' It does not say, give me your highest
SAT. It does not say, give me your best and brightest. It says,
give me your lowest. Give me the ordinary people of the world
and I will promise you something special. I will promise you
liberty. I will promise you freedom. and with that liberty,
with that freedom, America lets the ordinary people of the
world do their ordinary things but achieve extraordinary things
as Americans.
So as we go forward in responding to the threat of
terrorism in the future and responding to the attacks of
September 11, we are very mindful that we would not sacrifice
these values of freedom and liberty and institutions that
safeguard this freedom. At the same time, however, America is
asking us to deliver to her people a different kind of freedom,
freedom from fear, for without the safety of their persons and
the security of their nation, Americans would not be able to go
about doing those ordinary things that make America an
extraordinary nation.
And as we go forward in this process since September 11 and
continue to prosecute this war on terror, we have tried and we
have committed to preserving this balance in order to defend
freedom through law, which is the work, after all, of the
Department of Justice.
I will speak very briefly to three areas that are of
interest to this Committee. First, with respect to the
detentions, as of last evening, there are 608 persons in
Federal custody on criminal or immigration charges growing out
of our investigation into the September 11 attacks. Of that
total, 55 are being held on Federal criminal charges. The
remaining 553 are being detained on immigration-related
charges. The Department has charged a total of 105 persons for
violation of criminal law. Some of those indictments or
complaints have been filed under seal by order of court. The
names and charges against all others have been publicly
released.
Every one of these detentions, let me assure you, is fully
consistent with established constitutional and statutory
authority. Each of the 608 persons detained has been charged
with a violation of either immigration law or criminal law or
is the subject of a material witness warrant issued by a court.
Every one of these individuals has a right of access to
counsel. In criminal cases and in cases of material witnesses,
of course, the person has a right to a lawyer at government
expense if he or she cannot afford one. Persons detained on
immigration violations have a right to access to counsel, and
the INS provides each person with information about available
pro bono representation.
Every person detained has a right to make phone calls to
family members and attorneys. Under INS procedures, once they
get into custody, aliens are given a copy of the Detainee
Handbook, which details their rights and responsibilities,
including their living conditions, clothing, visitation, and
access to legal materials. In addition, every alien is given a
comprehensive medical assessment. Detainees are informed of
their right to communicate with their nation's consular or
diplomatic officers, and for some countries, the INS will
notify those officials that one of their nationals has been
arrested or detained. Aliens are permitted access to
telephones.
Finally, immigration judges preside over legal proceedings
involving aliens and aliens have a right to appeal any adverse
decisions, first to the Board of Immigration Appeals, and then
to the Federal Court.
Second, let me address the Justice Department's plan to
conduct voluntary interviews of individuals who may have
information relating to terrorist activity. On November 9, the
Attorney General directed all United States Attorneys and
members of the Joint Federal and State Anti-Terrorism Task
Forces, the ATTFs, to meet with certain non-citizens in their
jurisdiction. The Deputy Attorney General, Larry Thompson,
issued a memorandum outlining the procedures and questions to
be asked during those interviews.
We seek to interview those who we believe may have
information that is helpful to the investigation or to
disrupting ongoing terrorist activity. The names were compiled
using common sense criteria that take into account the manner
in which al Qaeda has traditionally operated, according to our
intelligence sources.
Thus, for example, the list includes individuals who
entered the United States with a passport from a foreign
country in which al Qaeda has operated or recruited, who
entered the United States after January 1, 2000, and who are
males between the ages of 18 and 33.
The President and the Attorney General continually has
emphasized that our war on terrorism will be fought not just by
our soldiers abroad, but also by civilians here at home. Last
week, the Attorney General announced a new plan to enable our
nation's guests to play a crucial part in this ongoing
campaign. Non-citizens are being asked on a purely voluntary
basis--
Senator Feingold. Mr. Dinh, I am going to have to ask you
to conclude.
Mr. Dinh. I will. Let me just describe this one particular
program and I will conclude--on a purely voluntary basis to
come forward with useful and reliable information about persons
who have committed or are about to commit terrorist attacks.
Under this Cooperators' Program, aliens may then be eligible to
receive S visa and other immigration status adjustments in
order to facilitate their stay in this country and/or help us
with our continuing fight, and with that, I would love to
answer any questions.
Senator Feingold. Thank you, Mr. Dinh, and, of course, your
full statement will be placed in the record.
[The prepared statement of Mr. Dinh follows:]
Statement of Viet D. Dinh, Assistant Attorney General, Office of Legal
Policy, U.S. Department of Justice
Good afternoon, Mr. Chairman and Members of the Committee. Thank
you for the opportunity to testify today on the Department of Justice's
response to the terrorist attacks of September 11 and our continuing
efforts to prevent and disrupt future terrorist activity.
September 11 was a wake-up call to America and, indeed, to freedom-
loving people around the world. To ensure the safety of our citizens
and the security of our nation against the threat of terrorism, the
Department has undertaken a fundamental redefinition of our mission.
The enemy we confront is a multinational network of evil that is
fanatically committed to the slaughter of innocents. Unlike enemies
that we have faced in past wars, this enemy operates cravenly, in
disguise. It may operate through so-called ``sleeper'' cells, sending
terrorist agents into potential target areas, where they may assume
outwardly normal identities, waiting months, sometimes years, before
springing into action to carry out or assist terrorist attacks. And
unlike ordinary criminals the Department has investigated and
prosecuted in the past, terrorists are willing to give up their own
lives to take the lives of thousands of innocent citizens. We cannot
wait for them to execute their plans; the death toll is too high; the
consequences are too great.
To respond to this threat of terrorism, the Department has pursued
an aggressive and systematic campaign that utilizes all information
available, all authorized investigative techniques, and all the legal
authorities at our disposal. The overriding goal of this campaign is to
prevent and disrupt terrorist activity by questioning, investigating,
and arresting those who threaten our national security. In doing so, we
take care to discharge fully our responsibility to uphold the laws and
Constitution of the United States. All investigative techniques we
employ are legally permissible under applicable constitutional,
statutory and regulatory standards. As the President and the Attorney
General have repeatedly stated, we will not permit, and we have not
permitted, our values to fall victim to the terrorist attacks of
September 11.
Before responding to your questions, I will speak briefly to three
areas that are of interest to this committee. First, the Department's
detention of individuals since September 11; second, the directive that
our Anti-Terrorism Task Forces conduct voluntary interviews of
individuals who may have information relating to our investigation; and
finally, the Bureau of Prison's regulation to permit the monitoring of
communications between a limited class of detainees and their lawyers,
after providing notice to the detainees.
With respect to detentions, as of Monday, December 3, there are 608
persons in federal custody on criminal or immigration charges growing
out of our investigation into the September 11 attacks. Of that total,
55 currently are being held on federal criminal charges; the remaining
553 are being detained on immigration-related charges. The Department
has charged a total of 105 persons for violations of federal criminal
law. Some of those indictments or complaints have been filed under seal
by order of court. The names and charges against all others have been
publicly released. Every one of these detentions is fully consistent
with established constitutional and statutory authority. Each of the
608 persons detained has been charged with a violation of either
immigration law or criminal law, or is the subject of a material
witness warrant issued by a court.
Every one of these individuals has a right to access to counsel. In
the criminal cases and in the case of material witnesses, the person
has the right to a lawyer at government expense if the he or she cannot
afford one. Persons detained on immigration violations have a right to
access to counsel, and the Immigration and Naturalization Service
provides each person with information about available pro bono
representation. Every person detained, whether on criminal or
immigration charges or as a material witness, has the right to make
phone calls to family members and attorneys. No one is being denied
their right to talk to their attorneys.
Under the Immigration and Naturalization Service's generally
applicable procedures, detainees enjoy a variety of rights, both
procedural and substantive. Once taken into custody, aliens are given a
copy of the ``Detainee Handbook,'' which details their rights and
responsibilities, including their living conditions, clothing,
visitation, and access to legal materials. In addition, every alien is
given a comprehensive medical assessment, including dental and mental-
health screenings. Aliens are informed of their right to communicate
with their nation's consular or diplomatic officers, and the INS will
notify those officials that one of their nationals has been arrested or
detained. Aliens are permitted access to telephones--which they may use
to contact their family members or attorneys--during normal waking
hours. Finally, Immigration Judges preside over legal proceedings
involving aliens, and aliens have the right to appeal any adverse
decision, first to the Board of Immigration Appeals, and then to the
federal courts.
Second, let me address the Justice Department's plan to conduct
voluntary interviews of individuals who may have information relating
to terrorist activity. On November 9, the Attorney General directed all
United States Attorneys and members of the joint federal and state
Anti-Terrorism Task Forces, or ``ATTFs'', to meet with certain
noncitizens in their jurisdictions, and the Deputy Attorney General
issued a memorandum outlining the procedures and questions to be asked
during those interviews.
The names of approximately 5000 individuals that were sent to the
ATTFs as part of this effort are those who we believe may have
information that is helpful to the investigation or to disrupting
ongoing terrorist activity. The names were compiled using common-sense
criteria that take into account the manner, according to our
intelligence sources, in which Al Qaida has traditionally operated.
Thus, for example, the list includes individuals who entered the United
States with a passport from a foreign country in which Al Qaida has
operated or recruited; who entered the United States after January 1,
2000; and who are males between the ages of 18 and 33.
The President and Attorney General continually have emphasized that
our war on terrorism will be fought not just by our soldiers abroad,
but also by civilians here at home. Last week, the Attorney General
announced a new plan to enable our nation's guests to play a part in
this campaign. Noncitizens are being asked, on a purely voluntary
basis, to come forward with useful and reliable information about
persons who have committed, or who are about to commit, terrorist
attacks. Those who do so will qualify for the Responsible Cooperators
Program. They may receive S visas (or deferred action status) that will
allow them to remain in the United States for a period of time. Aliens
who are granted S visas may later apply to become permanent residents
and, ultimately, American citizens. The Responsible Cooperators Program
enables us to extend America's promise of freedom to those who help us
protect that promise.
Third, the Bureau of Prisons on October 31 promulgated a regulation
permitting the monitoring of attorney-client communications in very
limited circumstances. Since 1996, BOP regulations have subjected a
very small group of the most dangerous federal detainees to ``special
administrative measures,'' if the Attorney General determines that
unrestricted communication with these detainees could result in death
or serious bodily harm to others. Those measures include placing a
detainee in administrative detention, limiting or monitoring his
correspondence and telephone calls, restricting his opportunity to
receive visitors, and limiting his access to members of the news media.
The pre-existing regulations cut off all channels of communication
through which detainees could plan or foment acts of terrorism, except
one: communications through their attorneys. The new regulation closes
this loophole.
This regulation permits the monitoring of attorney-client
communications for these detainees only if the Attorney General, after
having invoked the existing special administrative measures authority,
makes the additional finding that reasonable suspicion exists that a
particular detainee may use communications with attorneys to further or
facilitate acts of terrorism. Only 12 of the approximately 158,000
inmates in federal custody would be eligible for monitoring.
In taking this action, the Department has included important
procedural safeguards to protect the attorney-client privilege. First
and foremost, the attorney and client will be notified in writing that
their communication will be monitored pursuant to the regulation.
Second, the regulation erects a ``firewall'' between the team
monitoring the communications and the outside world, including persons
involved with any ongoing prosecution of the client. Third, absent
imminent violence or terrorism, the government will have to obtain
court approval before any information from monitored communications is
used for any purpose, including for investigative purposes. And fourth,
no privileged information will be retained by the monitoring team; only
information that is not privileged may be retained.
The Justice Department has two objectives in the war on terrorism:
to protect innocent American lives, and to safeguard the liberties for
which America stands. We have enhanced our national security by
immobilizing suspected terrorists before they are able to strike. And
we have respected civil liberties by detaining, on an individualized
basis, only those persons for whom we have legal authority to do so.
Those whom we suspect of terrorist activities and who are in violation
of the law will be prosecuted to the fullest extent with every resource
at the Justice Department's disposal.
Since the atrocities of September 11, the Department of Justice has
worked hand-in-hand with members of this Committee in our common effort
to protect innocent Americans from additional terrorist attacks. I
thank you for this unprecedented cooperation, and we look forward to
continuing our partnership. I would be happy to answer any questions
that you may have.
Senator Feingold. Without objection, I will submit for the
record statements from Amnesty International, the Arab American
Institute, and letters from Randall Hamud and Terry Feiertag,
lawyers who represent individuals who have been detained in
connection with the September 11 investigation who have also
taken issue with the Attorney General's assertion that
detainees have not been denied fundamental constitutional
rights.
At this point, I am going to turn to our ranking member of
the full Committee, Senator Hatch, for his opening statement. I
am going to withhold questions for Mr. Dinh. I plan to question
the Attorney General on Thursday about these issues. Then we
will recognize the Senators present here for a five-minute
round, and then hopefully after the vote, proceed to the other
panel. Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman. I want to thank you
for holding another Department of Justice oversight hearing,
this one on the detention of aliens in connection with the
September 11 attacks. I also want to thank you for acceding to
the Department's request that one of their officials be
permitted to testify. While there is much about which we may
disagree, there should be no question that a balanced and fair
examination of the Department's actions requires the presence
of a Departmental witness.
This is the third oversight hearing this Committee has held
in the past week and we have another scheduled with the
Attorney General this Thursday. The topics I expect we will
cover today were covered extensively last week and doubtless
will be revisited yet again on Thursday. We are, of course,
entitled to continue asking questions, but the legal analysis
remains unassailable.
As Assistant Attorney General Michael Chertoff explained
last week, every person detained has been charged with a
violation of either immigration law or criminal law or is being
lawfully detained on a material witness warrant issued by a
judge in connection with a grand jury investigation. Every one
of these individuals has a right to counsel. Every person
detained is able to make phone calls to family and attorneys.
Nobody is being held incommunicado.
To the extent that detainees are not being released on
bond, it is because a judge has determined that they are likely
to flee, will likely pose a danger to the community, or in the
case of immigration detainees, are alleged to be deportable
from the United States on the basis of criminal, including
terrorist, activity.
To the Department of Justice's credit, it understands its
obligation to treat these detainees fairly and lawfully. Mr.
Chertoff acknowledged last week that, ``It is not acceptable to
have a situation where their attorney cannot get in touch with
a detainee and that it is not the policy of the government to
try to interfere with attorney-client communication. We want
everybody to have access to their lawyers and we want to play
by the rules.'' I take the Department at its word and expect
that any problems will be promptly remedied.
Mr. Chairman, not surprisingly, there is a growing concern
among the public that these rapid-fire oversight hearings are
aimed less at providing information and more at demonizing the
administration and/or Attorney General for partisan purposes. I
would like to believe that all of the criticisms the
administration is receiving on these issues stem from a bona
fide concern for civil liberties.
But sometimes, I am afraid to say, it appears that this
administration cannot take any action, however innocuous,
without being second-guessed by pundits who fancy themselves
armchair directors of the FBI. For example, I am surprised and
saddened that some critics of the administration have seen fit
to criticize the FBI's decision to seek voluntary interviews
with individuals who have recently entered our country from
countries that are known havens for terrorists. I cannot
imagine a less-intrusive means of investigating these crimes
than to ask people if they are willing to talk voluntarily with
investigators. Yet, even this measured initiative has drawn, in
my opinion, unwarranted criticism.
The recent terrorist attacks on Israeli teenagers will, one
hopes, serve as an urgent reminder of the terrorist threat we
face. If more is needed, I urge everybody here to spend some
time with last Sunday's Washington Post. This article describes
in horrible detail, excruciating detail, the terrible injuries
suffered by so many in the attack on the Pentagon. I cannot
shake from my mind the picture of Louise Kurtz, who has
undergone more than 30 operations since being horribly burned
in that attack, but the Post did a very good job in showing the
suffering of these people.
Mr. Chairman, the fundamental obligation of government is
to protect its citizens from such harm. It is the solemn duty
of this Congress and the administration to do everything
consistent with our constitutional freedoms to stop terrorists
from ever again striking in this country. And as some of our
witnesses will make clear, we face a real and present danger
from terrorist cells in this country.
With that in mind, I urge my colleagues to rethink the
focus of our upcoming hearing with the Attorney General. Let us
put aside any partisanship and focus on the people's business.
Let us ask General Ashcroft what the American people really
want to know. I think what they want to know is, are we doing
everything we can to protect ourselves from terrorists? To me,
that is the big question. Are we doing everything we can to
protect ourselves from terrorists?
Mr. Chairman, I have great fondness and regard for you and
I know that you will conduct these hearings fairly and I also
know that it is important that we get these matters on the
record, and so you are doing the country a favor.
But I am really concerned that we get about doing what we
need to do to protect this country and worry a little bit more
about that. I know you are as worried as I am, but let us just
keep doing everything we can to support those who have this
tremendous burden on their shoulders, not the least of whom is
our Attorney General, whom we all know very, very well and who
I think is giving a tremendous effort to make sure that our
American public is protected.
Thank you, Mr. Chairman.
Senator Feingold. I thank the Senator from Utah. The
Senator and I get along exceptionally well, considering the
lack of correlation in our voting records.
[Laughter.]
Senator Feingold. I know that the Senator knows very--
Senator Hatch. I am hoping. I am hoping.
Senator Feingold. Keep hoping.
[Laughter.]
Senator Feingold. But I can tell you that I know that the
Senator knows that the purpose of this hearing is not to
demonize the Attorney General--
Senator Hatch. I agree with that.
Senator Feingold. --for partisan purposes, nor do I believe
that that is the case with our chairman or the other members of
the Committee who are genuinely concerned about what, at a
minimum, people would have to admit are unprecedented
proposals. Perhaps they are justified, but they certainly are
in most cases unprecedented. So I just wanted to clarify that
on the record.
And second, with regard to the interviews of the 5,000 men
proposed, even the police chiefs in places like Portland,
Oregon, and Ann Arbor, Michigan, are very uncomfortable with
the requests there because of their concern that it would
amount to the kind of racial profiling that their departments
have tried so hard to avoid.
So I would simply add those items to the record and I would
ask the ranking member if he would like a five-minute round
with Mr. Dinh.
Senator Hatch. Yes, if I could just ask one or two
questions. The Attorney General has released the number, but
not the names, of those detained on immigration violations from
the investigation of the September 11 attacks. Now, would you
elaborate on the reasons that these names have not been
released?
Mr. Dinh. Yes, Senator, and thank you for the opportunity
to comment on that. The Executive Office of Immigration Review
has discretion under 8 U.S.C. Section 3.27(c), I believe, under
that regulatory provision, to close its proceedings for certain
conditions, under certain criteria. In these 105 cases, the
Executive Office has determined to, at the request of the
Deputy Attorney General, to close those proceedings because of
concerns about the security of the information and the privacy
of the individuals involved.
These are civil immigration charges and we are very, very
cognizant that where a person is of interest to the
investigation arising out of the September 11 attack, we will
do everything in our power in order to detain these persons and
deport them if they do not have a right in this country. But at
the same time, we are cognizant not to create a black list of
some sort that would unfairly taint them in this process in
order for us to carry out our investigation. Independent of
that, we have obviously strong law enforcement interests and
security interests in maintaining the security of these
proceedings.
And so for all those reasons, we have made the
determination that it would be inappropriate for us to release
the names and charges with respect to these individuals.
Senator Hatch. Thank you. In the written statement of one
of the upcoming witnesses, he states that the recent regulation
providing that an alien must be charged with an immigration
violation within 48 hours after commencement of detention,
except in the event of an emergency or other extraordinary
circumstance, allows the Attorney General to hold an alien
``for virtually any period of time that the jailer chooses with
no recourse of explanation.''
First of all, do you agree or disagree with that statement,
and secondly, to your knowledge, has the government relied on
this exception and what are the circumstances involved if it
did?
Mr. Dinh. No, sir, I do not agree either with the premise
or the conclusion of the statement. As you know, the rule
permits the INS to make a determination within 48 hours with
exceptions for exceptional circumstances. I believe those
exceptional circumstances include a massive influx within a
particular district so that the determination cannot be made
within that time or the transfer between the offices.
I believe that some exceptions have been made. I do not
know the exact number and magnitude of those exceptions, but I
do believe that they are the exception and not the rule, that
people are charged outside of the 48 hours. But in any event,
it is not an unlimited exception. It has to be within a
reasonable period of time and we interpret that to be as a
matter of days. And in any event, any person under detention,
for whatever reason, under United States detention, always has
the right of habeas corpus to challenge that detention.
Senator Hatch. Now, the Attorney General recently
promulgated a regulation providing for the automatic stay of an
immigration judge's order releasing an alien on bond in any
case in which the INS initially either opposed bond altogether
or set a bond of $10,000 or more. Now, what concerns with the
adjudicative process prompted this regulation?
Mr. Dinh. Yes, sir. There is a very specific operational
problem that the INS faced and the Department faced immediately
after the September 11 attacks. That is, where a person is
determined to have bond above $10,000, under the normal
criteria of danger to the community or a flight risk while out
of detention, and that decision, that bond determination is
reversed by an immigration judge, there is no provision, there
is no ability for the INS to keep that person in detention
pending appeal of that decision except for if they are
fortunate enough to do an emergency stay that is granted prior
to the release, the posting of bond release of the person.
This operational loophole, really, creates a significant
problem for the Department because the person, if posting bond
and released, will create, in our opinion, a danger and a
threat to our society and a flight risk. We will have to go
then out and reapprehend the person if the Board of Immigration
Appeal determines that the bond was erroneously set by an
immigration law judge.
The rule was revised in order to accommodate this
operational need. Let me assure you that it has been used in
very limited circumstances. The automatic stay provision has
only been invoked nine times since the rule was promulgated.
Four of those times were for persons previously subject to the
previous version of the rule, that is, those persons detained
under Section 236(c) of the INA. For the other five cases, two
of the automatic stays became moot because the order of
deportation became final before their appeal of the bond was
effected, and for the other three, for one reason or another,
the INS dropped the automatic stay invocation and did not
pursue the appeal of the bond.
Senator Hatch. Thank you very much.
Mr. Dinh. And each of the five, by the way, were terrorism
related and were of interest to the 9/11 investigation.
Senator Feingold. Thank you, Senator Hatch, and thank you,
Mr. Dinh.
The vote has started and so the most orderly thing I can
think of is we will go over and vote and come right back and
begin with the next panel.
[Recess.]
Senator Feingold. I will call the Committee back to order.
Thanks for your patience.
Before we begin with panel two, I would just like to take a
moment to say a few things in response to Mr. Dinh. First, it
is my understanding that the Chief Immigration Judge has closed
immigration proceedings at the direction of the Attorney
General, not on his own accord, and without objection, I would
like to place in the record an e-mail from the Chief
Immigration Judge to all immigration judges to make this clear.
Let me also comment briefly on the new rules mentioned by
Mr. Dinh, the new ability of the INS to obtain what amounts to
an automatic stay of a decision to release a detainee set for
bond for that release. Once again, the Department has made
itself judge and jury. Prior to this ruling, all the Department
had to do was file a motion for a stay and then convince the
Board of Immigration Appeals that the detainee presents a
flight risk or a danger to the community. Those requests for
stay are routinely granted.
But now, as I understand it, the stay is automatic, meaning
that the INS itself makes the decision without any judicial
review at all, and I think this is also troubling and I think
perhaps the next panel may actually want to comment on it, as
well.
Our first witness on this panel is Ali Al-Maqtari. Mr. Al-
Maqtari was born in Yemen, studied in France, and came to the
United States on a tourist visa last year with hopes of
becoming a French teacher. On September 15, his life and dreams
of freedom would change forever.
Mr. Al-Maqtari arrived at Fort Campbell, Kentucky, to drop
off his wife, American Tiffany Hughes, who was reporting to
active duty with the U.S. Army. He was ordered out of his car,
questioned, and then detained by the INS for two months at a
detention center in Mason, Tennessee. He is now free on bond,
but only after a harrowing experience with the American justice
system.
Mr. Al-Maqtari, I know this has been a very difficult last
couple of months for you and your wife. I do appreciate your
willingness to appear before us and to share your experience
with the Senate and the American people. I thank you and I
would like you to proceed.
STATEMENT OF ALI AL-MAQTARI, NEW HAVEN, CONNECTICUT
Mr. Al-Maqtari. Thank you very much. Senators, Mr.
Chairman, I want to thank you very much for letting me testify
before your Committee today. My name is Ali Al-Maqtari and I
want to tell you in brief the story of how I was jailed by the
INS for almost eight weeks. Thanks to the fairness of your
immigration court and appeal system and the hard work of my
wife, Tiffany, and my attorney, my story has a good ending.
However, even though I did nothing wrong and cooperated with
the INS, FBI, and Army in every way possible, I spent many
weeks in difficult jail conditions, cut off from my wife, and
my wife had to give up her Army career. I tell you my story in
the hope that it will help other innocent people avoid the
problems that I had.
I came to the United States in June 2000 to visit my uncle,
a U.S. citizen, in Brooklyn, New York. Before that, I was a
student in France for a year. I graduated from the University
of Sana'a in Yemen in 1997 with a degree in education. I was a
French teacher in Yemen for two years and I was interested in
getting more education from France and the U.S.
I spent about a month in New York and I came to Connecticut
to stay with a family friend, where I studied English at a
local education center and helped in my uncle's store. I began
to make inquiries into jobs as a French teacher, and since my
English needed some improvement and I also wanted to get my
master's degree in education, I enrolled at Southern
Connecticut State University and I was accepted.
In March 2001, I met my wife, Tiffany, in a French chat
room on the Internet, and because we had so much in common,
such as our shared religion, our studies in France, and our
interests, we exchanged e-mail addresses and began a brief
courtship over the telephone, in which we discovered we both
wanted the same thing, a serious marriage with no dating,
something necessary in our religion.
We met each other's family, then we were married in June
with a double ceremony, once by the Justice of the Peace and
once in the mosque. In July, because of frustration with delay
in her transfer from the National Guard in North Carolina to
Connecticut, my wife suggested going into the regular Army. I
agreed because I respect my wife's decision.
We moved from Connecticut on September 15 and arrived at
Fort Campbell, Kentucky, on September 15 with a big surprise.
We were ordered out of my wife's car immediately for search,
and until my release, we were never alone again. We were
interrogated by the INS, FBI, and Army personnel from 4:00 p.m.
until 4:00 a.m. The questioning was harsh. The INS investigator
screamed at me that I would be deported and said I was lying
about my application, that there was nothing about me in the
computer, and that I would be deported. An FBI investigator,
Bill Frank, also told me that the Springfield, Massachusetts,
recruiting center where Tiffany had received her orders had
been blown up by terrorists 20 minutes after we left it.
The investigators said many, many times that our marriage
was fake and that Tiffany must be married to me because I was
abusing her. This accusation was totally false and very painful
for me. They also made many negative remarks about Islam,
things like Islam being the religion of beating and mistreating
women. They asked us about the box cutters that we had among
our things and we explained how I had used mine in the store
and Tiffany had used hers when she worked in the shipping
department of a nursery.
The interrogators were so angry and were so wild in their
accusations that they made me very frightened for what might
happen to me. The interrogators also had letters that I had
brought with me from my family and from a friend in Yemen, a
woman who is a doctor. Those letters were in Arabic. The FBI
agent insisted that these letters should show that I was
somehow involved with a terrorist from Russia. This was crazy
and false.
The following Monday, my wife and I were given polygraph
tests. I was arrested and put in jail in Nashville and my wife
continued to be followed 24 hours a day by three military
police. My wife and I were harassed by prison guards and Army
personnel. My wife finally agreed to a discharge when her
captain suggested it.
I spent eight weeks in jail, far from my wife and family.
She was not able to come to my hearing more than once because
of the distance, and my lawyer had to fly from Connecticut to
Tennessee, a State which is not even my home. I was kept in a
segregated unit in jail with convicted criminals. I was treated
as a guilty man by prison guards and immigration officers. Yet,
the INS and FBI had no evidence against me. I was given one 15-
minute call per week.
Finally, my bond was reduced from $50,000 to $10,000 and I
was released, but I am concerned for other detainees like
myself who have no means to pay this high bond.
I hope you will do whatever you can to try and fix this
problem. I have been back together with my wife for almost a
month and our lives are healing, but I hope that you will
protect other innocent people from the INS, and thank you very
much.
Senator Feingold. Mr. Al-Maqtari, thank you for your
testimony. You have been through an awful lot in the last
couple of months, and what is just so striking is that this is
not some story from America's distant past. This just happened.
The treatment you received is a shame, and even more shameful
because we have reason to believe that your story is not
unique. So it cannot be easy to appear here before the U.S.
Congress to tell your story, but I want you to know that I
think you have done your country a tremendous service by
courageously coming forward to educate us and all Americans, so
I just want to thank you again.
Mr. Al-Maqtari. Thank you.
[The prepared statement of Mr. Al-Maqtari follows:]
Statement of Ali Al-Maqtari, New Haven, Connecticut
Senators, Mr. Chairman, I want to thank you very much for letting
me testify before your committee today. My name is Ali Al-Maqtari, and
I want to tell you the story of how I was jailed by the INS for almost
eight weeks. Thanks to the fairness of your immigration court and
appeal system, and the hard work of my wife, Tiffinay, and my
attorneys, my story has a good ending. However, even though I did
nothing wrong, and cooperated with the INS, FBI, and Army in every way
possible, I spent many weeks in harsh jail conditions, cut off from my
wife, and my wife had to give up her army career. I tell you my story
in the hope that it will help other innocent people avoid the problems
that I had.
I came to the United States in June 2000 for a long visit. I had
just spent a year in France where I had completed a diploma as a
teacher of French. Before going to France, I had worked as a French
teacher at the Kuwait High School in Sana'a, Yemen for several years. I
graduated from Sana'a University with a degree in French in June 1997.
I have an uncle, who is a U.S. citizen, who lives in Brooklyn, New
York, with his family. Visiting my uncle and his family was my first
goal on my trip, but I also wanted to see what the United States was
like and improve my English. I also hoped that perhaps I would have an
opportunity to student teach or teach French. Gaining this experience
in the United States would be something that would really help my
career as a teacher in Yemen, because American education is highly-
respected in my country.
I spent about a month in New York, visiting my Uncle's family and
sightseeing. I liked it very much. My uncle has a close friend - so
close to our family that I call him ``uncle'' too, even though he is
not actually a member of our family, who lives in New Haven
Connecticut. My uncle urged me strongly to visit him. I did, and the
visit worked out very well. My ``uncle'' owned a small market and had a
second apartment where several young men lived. It was easy for me to
stay there without inconveniencing him or his family. I was able to
attend English classes at a local adult education center, and I helped
out at the market. Although I was not paid a salary, my ``uncle'' gave
me money for my expenses, and I bought a computer that a customer of
the store was selling. I discovered the internet, and this helped
improve both my English and French. I was really enjoying my visit, and
I wanted to extend it. A friendly woman, who was a mentor to many of
the students at the adult education center, helped me by filling out
the INS application to ask for a longer visit, and I sent it in to the
INS in Vermont.
In my first few months in New Haven, I also made contacts about
student teaching or teaching French. I visited Kay Hill, the language
coordinator of the New Haven Public Schools several times. She invited
me to visit several schools in New Haven and gave me advice about
taking the TOEFL test and studying here. Later on, in May or June 20011
had my degrees evaluated and applied for admission to a language
teaching program at Southern Connecticut State University in New Haven,
which accepted me.
However, the most important thing which happened to me in the
United States, is that I met my wife, Tiffinay. We first met in a
French language internet chat room in March or April 2000. Tiffinay
also speaks French well. Like me, she has studied in France. We met
only once in the chat room. We traded email addresses and began to
exchange emails. Then we spoke by telephone.
Because we speak French, we were able to communicate well. My wife
had previously become a Muslim, and this was something else that we
shared and was important to us. It continues to be now, as we share the
holy month of Ramadan. In May 2001, Tiffinay invited me to visit her in
North Carolina. I stayed with her and her parents, and invited her to
visit me in Connecticut. She did this very quickly, and this showed me
that her intentions were serious. We decided to get married and were
married in Hamden, CT on June 1, 2001. Neither of us is in favor of
extended social dating or living together before marriage. We wanted to
marry and begin our life together. This is common for Muslims. My own
parents met only a day before their wedding and have been happy for
many years.
After our marriage, Tiffinay moved to New Haven, and we rented our
own apartment. At first, we thought that both of us would get jobs in
New Haven, and Tiffinay would transfer from the North Carolina National
Guard to the one in Connecticut. (I didn't really know exactly what the
National Guard was. Tiffinay explained to me that it was like the part-
time army.) We went to an attorney to begin work on a marriage
application to allow me to stay here. She told us to write to the INS
to withdraw my request to extend my tourist visit, because I now
planned to live here, not just to visit. We did this in early July.
Because of delays with transferring Tiffinay's National Guard
membership from North Carolina to Connecticut, she thought that it
would be best if she enrolled in the full-time army. I agreed. This
would mean living in another part of the country further away from my
uncle and his family, but we are young, and I wanted to respect
Tiffinay's decision. In August, we learned that Tiffinay would be in
the army at Fort Campbell, Kentucky for a long time, for up to three
years, starting in the middle of September, and we made plans to move
there. We also filed our marriage application with the INS.
On September 12, the local Army recruiting office called Tiffinay
to let her know that the recruiting center in Springfield,
Massachusetts where she was to pick up her final orders was closed, but
that she should go there on September 13 to pick up her orders. When we
went there, a sergeant at the recruiting center spoke to each of us
separately about Tiffinay not wearing a hejab--the head scarf that many
Muslim women wear. He was not unfriendly to either of us. We explained
to him that Tiffinay would be wearing her uniform when she got to base,
and soon after, we left. We did not think that anything was wrong, and
we began the three day drive to Fort Campbell. We had ended our lease
in New Haven, and we had all of our things packed in Tiffinay's car.
When we arrived at Fort Campbell on September 15, Tiffany's car was
stopped as soon as we got to the gate. We were separated and taken by
officers to separate cars, and Tiffinay's car was emptied and searched
three or four times by bomb-sniffing dogs.
We were then taken to a building like a police station and
separately interrogated by INS, Army, and FBI investigators--nine of
them, I think--for more than twelve hours. Although we were separated,
we had the same thought: to cooperate and answer all the questions they
put to us. We did this although the questioning was very harsh. An INS
agent screamed at me that I was illegal and could be deported
immediately and he refused to listen to me when I told him about my
applications. He said I was lying, that there was nothing about me in
the computer, and that I would be deported. An FBI investigator, Bill
Frank, also told me that the Springfield, Massachusetts recruiting
center where Tiffinay had received her orders had been blown up by
terrorists twenty minutes after we left it. (He told Tiffinay that
there had been a bomb alert and that they found suspicious materials
after we left.) They told her that we were suspicious because she was
wearing a hejab and we had been speaking in a foreign language. French
was the only language other than English that we had spoken together,
but it must have made them nervous. The investigators said many, many
times that our marriage was fake, and that Tiffinay must be married to
me because I was abusing her. These accusations were totally false and
very painful for me. They also made many negative remarks about Islam,
things like Islam being the religion of beating and mistreating women.
One acted out a fist hitting his hand, another said my wife had written
a letter saying that I beat her, which I knew was false, and another
insisted he would beat me all the way to my country because I
mistreated my wife.
They asked us about the box cutters that we had among our things,
and we explained how I had used mine in the store, and Tiffinay had
used hers when she worked in the shipping department of a nursery. The
interrogators were so angry and wild in their accusations that they
made me very frightened for what might happen to me. I learned later
that Tiffinay was asked very similar questions. They also asked her if
I spent large amounts of time on the internet and/or sent emails to
terrorists. The interrogators also had the letters that I had brought
with me from my a family, and from a friend in Yemen who is a doctor.
These letters were in Arabic. They had a translator review them. He
would read passages from the letters, and Bill Frank from the FBI
insisted that the letters from my friend, the doctor, showed that she
was my terrorist controller and that I was somehow involved with
terrorists from Russia. This was silly and completely false, and I
think they knew it, but at the same time it made me frightened because
it seemed like they intended to accuse me of being involved with all
the enemies of the United States.
After this long interrogation, at about 4:00 am, they let us speak
to each other in a room for a few minutes while they waited outside. We
would not be alone again until November 8.
Tiffinay was taken to a barracks where she was kept on a separate
floor apart from the other women soldiers. From that time through
Wednesday of the following week, she had three guards with her at all
times, day and night, no matter what she did: even bathing and
sleeping. All of these soldiers but one were men. After that she was
not so mistreated. She was able to live with the other women, and she
started to make friends with people. Still, she learned many negative
things: that her photo had been distributed to the gates of the base
before we arrived, that handmade posters with her photo were circulated
around the base, and that many people had heard local television news
broadcasts that said that I was a spy at Fort Campbell.
I was taken to a hotel near the base, where I spent the weekend.
People watched me from the parking lot.
On Monday, September 18, both of us were taken were taken to the
FBI office in Nashville, Tennessee, where they gave us polygraph tests.
Although many of the questions were very strange (Have you ever
embarrassed your family? Have you ever lied?. . .) we both answered
them the best that we could. I was given deportation papers charging me
with overstaying my visa. In what seemed like a positive thing, both
the INS agent and Mr. Frank from the FBI said that they knew that I had
told the truth and that I would probably be released the next day. I
learned later that Tiffany had been told the same thing by army people,
and the INS had given similar news to Attorney Maria Labaredas, who
works with Attorney Boyle and who faxed copies of all my immigration
papers to the INS. It was strange that these men, who had been wild and
full of anger on Saturday, were now very calm.
However, I was not released. Army people told Tiffinay that someone
in the FBI had ordered that I not be released. I really do not know
what happened. I was never spoken to again by the FBI, Army or INS, but
I spent more than seven weeks in jail.
At the jail near Nashville where I spent my first week in
detention, one guard was very difficult. He kept saying that I was a
terrorist and asking if I knew bin Laden. Then I was transferred to a
jail in Mason, Tennessee, near Memphis. For my first two weeks there I
was put with normal inmates, and the staff and other inmates treated me
normally. However, it was upsetting to be in jail. I had never been
arrested or had any kind of problem with the police anywhere. I did not
want to be in jail, and was concerned that I had not been released
quickly, once the INS and FBI had confirmed that I had told them the
truth. I was also unable to speak to my wife, and was worried about
her.
I learned later that my wife was also very upset and concerned
about what was happening to me. She was afraid that I would still be in
jail when she was sent overseas. Also, she was concerned that some
people seemed to distrust her because she was my wife and that many
people at Fort Campbell seemed to believe the local television reports
about me being a spy. When her officers suggested to her that she
should request a discharge because of these problems, she agreed. She
was granted an honorable discharge on Friday morning, September 28, and
drove to the prison to visit me that afternoon.
Things were harder for me after that. The prison moved me to a
segregated unit with very serious criminals. They said that it was for
my protection, but it made me feel very unsafe. The other prisoners had
committed very serious crimes, and a guard there accused me of being a
terrorist. He would whisper to these bad criminals, and they would
threaten me and taunt me. One, who said that he had murdered someone
and spent twenty-five years in jail threatened me in the shower. Others
told me that I should confess, that I would never leave the jail, and
things like that. Because I was in the segregated unit, I could only
make one phone call a week. One of my attorneys, Michael Boyle, visited
me twice and could call me before I had hearings. However, things were
very frightening and very difficult. What was happening to me was
totally different than how I thought America worked. As things seemed
to get worse and worse, I became fearful of what would happen to me.
My first bond hearing, early in October, was difficult. Tiffinay
and I answered questions for a long time, and the INS presented no
evidence. Still, the Judge set a very high bond, $50,000. The INS said
that they would immediately try to stop even this high bond from taking
effect, and they did. It was very hard to wait while the appeals board
considered the case. My next bond hearings were also disappointing, as
the Judge said that he was giving the INS a ``last chance'' to bring in
more evidence. I was glad that he said he was thinking of a lower bond,
but I was concerned that the INS seemed to get so many chances even
when they had told me that Monday in Nashville that they knew that I
had told the truth.
My lawyers assured me that things would get better for me, that the
Judge and the appeals board judges had to be very careful because of
what happened on September 11, and would be very generous to the INS at
first, but that they would not let the INS hold me for months without
having any evidence.
I am very grateful that in the end this is what happened. I am
grateful that the appeals court judges were willing to make a decision
based on the facts, not on fear. And I am grateful that the INS was
worried that the Immigration Judge in Memphis would give me a low bond
and decided to settle my case. Still, I spent almost eight weeks in
jail, and my wife lost her army career because people were angry and
nervous and I am from Yemen. My experience with the INS was very bad.
They lied to me and locked me in jail for eight weeks with no evidence
against me. I told them all there is to know about my life, my lawyer
gave them many documents from Yemen and France to prove the truth of
what I said, and my wife testified all about our marriage. I should not
have been held for weeks. In the end, we had to agree to the $10,000
bond that the INS offered because there is a new rule that could have
let the INS keep me for many more weeks if the Judge had given me a
lower bond than the INS wanted. Because Tiffinay had saved enough money
to pay the bond, this was not a problem for me, but I am worried that
there will be many other people whose wives do not have $10,000.
I hope you will do whatever you can to try and fix these problems.
I have been back together with my wife for almost a month, and our
lives are healing, but I hope that you will protect other innocent
people from the INS.
Senator Feingold. I turn now to Michael Boyle. Mr. Boyle
represents Mr. Al-Maqtari. Mr. Boyle has had a distinguished
career as an immigration attorney and is an active member of
the American Immigration Lawyers Association. I thank you for
joining us and you may proceed.
STATEMENT OF MICHAEL J. BOYLE, LAW OFFICES OF MICHAEL J. BOYLE,
NORTH HAVEN, CONNECTICUT, ON BEHALF OF THE AMERICAN IMMIGRATION
LAWYERS ASSOCIATION
Mr. Boyle. Thank you, Mr. Chairman and members of the
Committee. I am really honored to have come here from
Connecticut to be with you. I am here as Mr. Al-Maqtari's
attorney and as a member of the American Immigration Lawyers
Association.
The Department of Justice is engaged in a critically
important law enforcement effort and we support that effort.
However, we are deeply concerned about the new policies and
regulations that have been issued unilaterally in the next two
months. These policies go way beyond the existing law and the
parameters that Congress and the administration set in the USA
PATRIOT Act last month. They have been instituted without
debate, without notice, and without comment.
Our Constitution was written to protect everyone in our
country and these practices limit our freedoms in dangerous
ways. Widespread arrests based on ethnic profiling, secret
court hearings, long detention based on suspicion rather than
on concrete evidence, and wiretapping conversations between
attorneys and clients are not the American way. Yet, the
Justice Department's new practices and regulations allow the
local INS officers and Justice Department officials around the
country to employ these tactics without accountability.
Our democracy was founded on openness. Despite that history
of openness, we have gotten very, very little information about
who is detained, why they are detained, what are the charges
against them, how many of them are being held without counsel,
and the trend, unfortunately, is in the wrong direction.
In October, the Attorney General issued a memo essentially
encouraging Justice Department officials to deny Freedom of
Information requests. Then this month, the Justice Department
stopped revealing the full counts of who has been detained in
connection with the post-September 11 investigation.
We have had a similar problem in our immigration courts. We
have never had before this consistent pattern of secret
hearings. Hearings were closed only in asylum cases or battered
spouse type cases. Suddenly, all kinds of cases are being held
secretly and you cannot even learn the date and time of your
own hearing. It makes it incredibly difficult for people to get
lawyers and for their family members to understand how their
case is going on and it is completely unprecedented. The
regulation was never invoked in this way before. This
information was always something you could dial up and get or
look on the wall of the immigration court to get.
Except for the ten or 15 people out of the 1,200 who the
Justice Department has identified as having some connection to
al Qaeda, it is wrong to hold secret hearings and it is wrong
to withhold this type of information.
Based on what we learned in our case and from talking to
other immigration attorneys around the country, we are finding
a pattern of excessive detention and disrespect for the rights
of non-citizens. As in Mr. Al-Maqtari's case, he was arrested
with an invalid warrant. He was not given any rights to
counsel, none of these booklets and extensive protections you
have heard about. And in virtually every other case we have
heard, it has been the same--no warnings, no right to counsel,
people are discouraged from getting attorneys, they are told
they will get out quicker or their case will be resolved
quicker if they do not.
Countless cases, as you hear, over 500 are being designated
as so-called special interest cases. Yet at the same time, the
Department admits that only ten to 15 people have any
connection to al Qaeda whatsoever, and most of those are
sympathizers. There is a huge disconnect there.
Our system is based on open court hearings. Our system is
based on the press and the public being able to see what is
going on, being able to understand. The black list excuse is
simply that. It is not a black list to have an open hearing and
perhaps be cleared in open court. The real problem is when, as
in our case, family members cannot come to court. The only way
we were able to have any witness to be with us in court was to
have another local immigration attorney kindly sign on to come
with us so that we would not have a complete star chamber
proceeding.
All over, there are these kinds of violations. Women are
being given pat-down searches. Men are being told, how much
torture can you take before you answer? There are all kinds of
problems.
Detention without charges--again, even the Assistant
Attorney General who just testified does not know how many
people have been held and for how long. It is one thing to say,
we are reasonable people and we are going to be reasonable, but
even the Assistant Attorney General cannot tell us who is being
held and for how long, and this regulation facially has no
limit either on how long you can be held or on what kinds of
offenses.
Even the most straightforward immigration offenses, and for
example, in Mr. Al-Maqtari's case, simple overstay case while
he was waiting for his marriage application to be processed.
There are tens of thousands of people in that situation. I hope
to God they are not all picked up, but it is certainly not a
justification for the kind of experience that he has gone
through. It goes way beyond the PATRIOT Act, it goes way beyond
Zadvydas.
I want to go on quickly to talk about, as I close, this new
automatic stay regulation. In the end, the FBI said that they
had cleared Mr. Al-Maqtari. The INS, however, would only agree
to a $10,000 bond and the immigration judge, according to my
co-counsel, was willing to grant us something like half that.
We could not contest. We could not let the immigration go
forward and enter that $5,000 order, because if we had, the INS
would have invoked this automatic stay and he would still be in
jail today and he would probably be in jail for three or four
months more.
It is wrong to let the INS win when it wins and win when it
loses. It is wrong to use a phony operational problem. The idea
that they would let people out is absurd. It takes hours to
enter a bond, and the Board of Immigration Appeals has granted
these stays almost immediately. There was no problem. This is a
classic case, just like the thing about wiretapping attorneys.
It is a problem that does not exist. It is fixing something
that is not broken. The Board of Immigration Appeals granted
the stays. They were easily available. Where there are rogue
attorneys, the courts entered orders against them.
So in conclusion, I want to thank you for the opportunity
for coming here. I want to ask you to support the legitimate
efforts of the Justice Department but to rein in these measures
which are corrosive of our civil rights and freedoms.
Senator Feingold. Thank you, Mr. Boyle, for your strong and
informative testimony.
[The prepared statement of Mr. Boyle follows:]
Statement of Michael Boyle, American Immigration Lawyers Association
Mr. Chairman and distinguished Members of the Subcommittee, I am
honored to be here. My name is Michael Boyle. I appear here today as
one of the attorneys for Ali Ai-Maqtari, whose compelling story you
just heard. I also appear here today as a member of the American
Immigration Lawyers Association, the national bar association of nearly
8,000 attorneys and law professors who represent the entire spectrum of
applicants for immigration benefits. I appreciate this opportunity to
present our views on current U.S. immigration policy and practices
related to the detention of noncitizens.
The Department of Justice is engaged in a critically important law
enforcement effort. AILA supports every effort to identify, prosecute
and bring to justice the perpetrators of the heinous crimes of
September 11. However, we are deeply concerned about a series of new
policies and regulations issued unilaterally by the Department of
Justice in the last few months. These policies go far beyond existing
law and the parameters set by Congress and the Administration in the
USA PATRIOT Act. These procedures have been instituted without notice
and comment or public debate.
Our Constitution was written to protect everyone in our country.
The sweeping, new practices limit our freedoms in dangerous ways.
Widespread arrest of noncitizens based on ethnic profiling, secret
court hearings, long detention based on suspicion rather than concrete
evidence, and wiretapping conversations between attorneys and clients
are not the American way. Yet the Justice Department's new practices
and regulations allow local INS and other Justice Department employees
to employ them on a widespread basis, with little accountability to the
American people. While every step must be taken to protect the American
people from further terrorist acts, we need to preserve the basic
rights and protections that make American democracy so unique and
precious. Reining in excessive practices that corrode those basic
rights is critical to the defense of our democracy.
The five new practices that I will discuss damage our democracy and
Constitution. First is the unprecedented level of secrecy under which
detentions now occur. Second is the question of whether these detainees
are being provided meaningful access to counsel. Third is a new
regulation issued by the Justice Department that allows people to be
detained for an unspecified period of time without even being charged
with an immigration violation. Fourth, a new regulation has been issued
that allows the government to eavesdrop on the conversations between
lawyers and clients who are in federal custody, including people who
have been detained but not charged with any crime... Finally, I will
discuss a new regulation issued by the Justice Department that
authorzes the continued detention of noncitizens who have been ordered
released on bond by an immigration judge.
The Veil Of Secrecy Over The Detention Of Noncitizens Violates
Fundamental Principles in Our Judicial System
Our judicial system is founded on the principle of openness. Since
the birth of this country we have recognized that only through an open
process and an informed society can justice be achieved. As James
Madison said, ``Knowledge will forever govern ignorance, and a people
who mean to be their own governors must arm themselves with the power
knowledge gives. A popular government without popular information or
the means of acquiring it is but a prologue to a farce or a tragedy or
perhaps both.''
Despite our history of openness, one of the most disturbing
developments in the government's current course of action has been the
refusal to provide information about the more than 1,200 people who
have been arrested since September 11. To illustrate, the Attorney
General issued an internal memo, on October 12, which appears to
encourage agency efforts to withhold information sought under the
Freedom of Information Act (FOIA). The memo stated, ``When you
carefully consider FOIA requests and decide to withhold records, in
whole or in part, you can be assured that the Department of Justice
will defend your decisions unless they lack a sound legal basis or
present an unwarranted risk of adverse impact on the ability of other
agencies to protect other important records.'' On November 8, after
conflicting statements from the White House and the DOJ about the
status of the detainees, the DOJ announced they would no longer release
the number of detentions. Although the Justice Department recently
released a list of the number of people who been charged with specific
immigration violations and their countries of origin, questions remain
unanswered. Who is being detained? Where are they being held? How many
remain in INS custody without being charged? How many detainees remain
unrepresented by counsel? These and other questions remain unanswered
more than two months after the initial arrests and despite repeated
inquiries and the filing of formal FOIA requests. This silence is
unacceptable.
A similarpattern of secrecy has arisen in immigration courts. Chief
Immigration Judge Michael Creppy, on September 21, issued a memo
instructing immigration judges to hold certain hearings separately, to
close these hearings to the public, and to avoid discussing the case or
otherwise disclosing any information about the case to anyone outside
of the immigration court. These restrictions also apply to confirming
or denying whether such a case is on the docket or scheduled for a
hearing. These new policies have obviously made it very difficult for
the lawyers representing these clients, and for the families that have
been torn apart by this sweeping investigation. This new policy is also
disturbing in that the Department of Justice is not required to provide
any basis or explanation for why proceedings will be closed. Any case
involving any immigration matter may be closed simply because the
Department of Justice wants it to be closed.
In testimony before this committee last week, the Justice
Department defended its actions by asserting that ``nothing prevents
any of these individuals from identifying themselves publicly or
communicating with the public.'' This view abrogates the responsibility
that the government has to disclose who it is holding.
The government has given the following reasons for not disclosing
information about detainees. First, that immigration law prohibits such
disclosure. Second, that such disclosure would violate the privacy of
the detainees. And three, that releasing the information would provide
valuable information to Osama bin Laden. Let me address these concerns.
There is nothing in immigration law to prohibit the disclosure of
information about detainees. In fact, this information has been
routinely made available in the past. In addition, detainees who have
gone missing from their families and communities will surely not
benefit from continued secrecy regarding where and why they are being
held, and the conditions of their detention. Finally, senior law
enforcement official have said that of the more than 1,200 reported
detentions, only 10 to 15 are suspected as A1 Qaeda sympathizers, and
that the government has yet to find evidence indicating that any of
them had knowledge of the Sept. 11 attacks or acted as accomplices.
However, the government continues to justify the refusal to provide
information on grounds that the release of information would hann the
investigation of the September 11 attacks. With the exception of the
10-15 suspected terrorists, it makes little sense to continue refusing
to release information about the detainees.
The government's statement that the detainees themselves can
publicize their detention also ignores the realities that these
detainees face while imprisoned in the immigration system. In many
cases, detainees have been limited to only one collect call per week
and are denied visits from even close family members. This severely
limits their ability to find an attorney to represent them. In all of
the confusion and fear surrounding their detention, and in the face of
isolation from friends and family, the idea that detainees are free to
make their cases and conditions known to the outside world is simply
not believable. Holding secret hearings compounds these problems.
Secret hearings should not be the norm, and should not be granted
without input from both parties. Open hearings, subject to the scrutiny
of the public and press, are a fundamental American right.
The Experience of Detainees Around the Country Raise Questions About
The Treatment of Other Detainees and Their Access to Counsel
Based on reports from immigration attorneys and newspapers around
the country, we are concerned that the cases you have heard today are
not isolated, exceptional incidents, but are part of a pattern of
excessive detention and disrespect for the rights of noncitizens. Here
are some examples:
In Ohio, 11 Israelis were arrested in the early morning hours of
October 31 by federal law enforcement agents with guns drawn. They were
charged with violating the terms of their tourist visas by selling toys
and trinkets in shopping malls. Upon arrest, they reported that law
enforcement officials told them that they did not need to contact
counsel and that things would be more ``complicated'' and the detention
would be ``longer'' if counsel was retained in their defense. None of
the detainees were advised that they had the right to retain counsel or
that any statements they made could be used in a ``subsequent
proceeding'', as is required by regulation. At least one detainee was
asked ``how much torture'' he could endure before ``telling the
truth.'' Two of the female detainees were subjected to a degrading and
humiliating ``pat down'' search by a male INS officer as a prerequisite
to using the restroom.
After nearly a week in detention, they were able to retain counsel
who filed a motion for bond before an immigration judge. At the
hearing, the government designated the case a ``special interest case''
claiming that the 11 were suspected of terrorist activity. Yet, in two
separate bond hearings the government failed to produce any evidence in
support of its assertions. Indeed, the only evidence produced to the
Immigration Judge were documents reflecting possible unauthorized
employment.
After giving the INS every opportunity to present evidence of
terrorist activity or a national security threat, including the option
of an in-camera inspection, the immigration judge ordered bond in each
case. She issued a written memorandum concluding that the government
had produced no evidence of terrorist activity or danger to the
community. However, despite the complete lack of evidence, the INS,
under the direction of the FBI, immediately stayed the release of the
11 through a newly amended INS regulation that effectively gives the
Justice Department the power to stay custody, possibly for months. Two
days later, after the press began to inquire into the situation, the
FBI authorized INS to allow the release of nine of the eleven
detainees. Two weeks later, after an Immigration Judge granted all
eleven voluntary departure, the other two Israelis were released but
ordered by the FBI to remain in the United States under a ``Safeguard
Order.''
To this day, the Department of Justice has not presented a
scintilla of evidence justifying these detentions. All eleven had valid
documents that were easily verifiable by the Israeli Consul. All had
entered the US legally. All were within the respective periods of stay
authorized by the Attorney General. And none had a criminal record of
any kind anywhere in the world. The FBI continues to refuse two of the
Israelis permission to depart for Israel.
On September 13, Tarek Mohamed Fayad was arrested after stopping at
a gas station near his home in Colton, California. The 34-year-old
Fayad, an Egyptian dentist who came to the United States in 1998 to
study, says four agents ordered him to lie on the ground, telling him
INS ``thinks you're illegal.'' He was driven back to his home where he
surrendered his passport and immigration papers. The officers searched
his home and then arrested him on charges that he had violated the
terms of his student visa.
Mr. Fayad was originally held on $2,500 bond in a Los Angeles,
California jail. Four days after his arrest, Mr. Fayad's American
girlfriend and another friend, Mahmoud Bahr, came to post the bond.
When they arrived, they were told that the bond had been rescinded. At
the same time, Mr. Bahr was detained and questioned for eight hours.
After September 17, he was transferred to unknown locations that
were later determined to be a Lancaster facility and the Metropolitan
Detention Center in Los Angeles were he was questioned by FBI agents.
Around September 20, he was taken to New York and held in Brooklyn's
Metropolitan Detention Center, where the FBI again questioned him.
Guards there would frequently taunt him by calling him a terrorist. At
night, they woke him every half an hour. Despite this treatment Mr.
Fayad cooperated fully and even agreed to take a lie detector test.
Back in California, the friends who tried to post bond became very
concerned when they could no longer locate Mr. Fayad. They contacted
the Egyptian embassy, but they were also unable to locate him (in fact,
the Embassy did not learn of his whereabouts until November). Mr.
Fayad's friends hired attorney Valerie CurtisDiop to find and represent
Mr. Fayad. Ms. Curtis-Diop called INS, and the U.S. Marshall's office,
but was unable to determine where he was being held. At some point, Ms.
Curtis-Diop was given a federal register number for Mr. Fayad, and was
told that he was being held in ``witness security.'' Even with that
number, Ms. CurtisDiop could not confirm where he was being held.
Despite information that Mr. Fayad was in the custody of the Bureau of
Prisons, the Bureau refused to acknowledge to Ms. Curtis-Diop that they
had Mr. Fayad. It would be more than a month before Ms. Curtis-Diop was
able to locate her client. To this day, calls to the Bureau of Prisons
result in a denial that Mr. Fayad is in their custody.
When Mr. Fayad had originally asked about an attorney in late
September, he was given a list of 16 agencies. It wasn't until early
October that Mr. Fayad was allowed to make phone calls to try and
secure counsel. Phone calls to attorneys are restricted and ``social''
calls are allowed only once a month. Only two of the agencies on the
list provided to Mr. Fayad provide legal counseling to detainees, and
one of those numbers was not working. It was not until October 18, on
his first ``social call'', that Mr. Fayad learned that Ms. Curtis-Diop
had been retained to represent him. It wasn't until sometime later that
he was allowed to speak directly with his attorney.
Mr. Fayad continues to be held in the Special Housing Unit, where
he remains in a cell 24 hours a day - even meals are served in his cell
and he has no access to newspapers, television or radio. It wasn't
until the end of October that he was allowed to outside - at 7 am, for
an hour. Despite representations to Ms. Curtis-Diop by the U.S.
Attorney's office that the FBI in New York are no longer interested in
Mr. Fayad, he continues to be held in custody. Immigration proceedings
have been continued, but even if an immigration judge makes a final
determination in his case he will remain in custody until FBI issues an
official clearance.
Having a right to counsel is meaningless unless those imprisoned in
our immigration system are made aware of that right, and given the
opportunity to actually exercise the right in a timely fashion.
Furthermore, lawyers need to be able to contact their clients.
Transporting detainees, sometimes across the country, without any
opportunity for lawyers or family to determine where they are raises
serious questions about whether detainees have access to counsel.
In light of the refusal to provide information about who has been
detained and where they are held, we remain concerned that many
detainees are unrepresented by counsel. Anecdotal evidence from
detainees who are represented by counsel, and lawyers who have been in
immigration court and jails where detainees are held suggests that this
is the case.
Department of Justice Authorizes Detention Without Charges
In testimony before this committee last week, the Justice
Department stated that every person detained has been charged with a
violation of either immigration law or criminal law. Yet we know from
first hand accounts that this is not the case. An AILA member in New
York currently represents three men who have been detained for as long
as a month without being charged with any violations. Unfortunately,
these are not isolated cases.
In fact, these practices are part of a pattern reflected in a new
regulation issued by the Attorney General on September 20. This new
regulation purports to grant the INS authority to detain a noncitizen
for an unspecified period of time ``in the event of an emergency or
other extraordinary circumstances'' without so much as a determination
as to whether to pursue proceedings. This exceptionally vague and open-
ended provision allows detention without reason for virtually any
period of time that the jailer chooses, with no recourse or
explanation. It, in effect, allows an individual to be held for long
periods for no better reason than that someone in government thinks
they look suspicious. What could be more offensive to our Constitution
and to the democratic way of life that we seek to defend?
It was only a few months ago that in the case of Zadvydas v. Davis
(533 U.S. , 121 S.Ct. 2491 (2001)) that the U.S. Supreme Court found
unconstitutional the practice of indefinitely detaining individuals who
had been found to have violated the immigration laws and ordered
removed. Yet here is a regulation that would indefinitely detain those
who have not even been charged, much less been found removable. That
the Zadvydas court imposes a reasonable time standard on detention of
those found removable does not mean that the INS can adopt the same
standard for those who have not even been charged. We owe the
Constitution and our democracy better than that: we owe those under
scrutiny the right not to be deprived of liberty without due process of
law. Holding someone for an unspecified period without even deciding
whether to charge him deprives him of liberty with no process of law.
Congress also has spoken to the issue of how long an individual can
be detained, and has done so even more recently than the Zadvydas
decision. In the USA PATRIOT Act, Congress limited to seven days the
time that an individual suspected of terrorism can be held without
being charged with a crime or brought under removal proceedings.
Allowing persons not necessarily even suspected of terrorism to be held
for an undefined period is a clearly an end-run around the limitations
that this Congress felt were necessary to secure the rights of the
accused.
Monitoring Communications Between Detainees and their Lawyers
October 30, 2001, the Department of Justice authorized the
monitoring of mail and other communications between lawyers and clients
who are in federal custody, including people who have been detained but
not charged with any crime. Despite government assertions that this
broad authority will be applied in only a limited number of cases,
nothing in the regulations prohibits it from being applied broadly.
According to a summary published in the Federal Register, the
monitoring will be conducted without a court order in any case the
Attorney General certifies ``that reasonable suspicion exists to
believe that an inmate may use communications with attorneys or their
agents to facilitate acts of terrorism.'' Such certification will last
for up to one year, and is not subject to judicial review. The new
regulations also expand the definition of ``innate'' to cover anyone
``held as witnesses, detainees or otherwise'' by INS agents, U.S.
marshals or other federal authorities.
Other than vague and general assertions that these new measures are
necessary to protect the public, the Department of Justice has failed
to demonstrate the need for these rules to protect against attorneys
who may help to facilitate future or ongoing criminal activity. Under
existing law, federal authorities can seek appropriate remedies under
the wellestablished ``crime-fraud'' exception to attorney-client
privilege. In a closed-door hearing before a federal judge, and in the
absence of the offending attorney, the court can take immediate and
effective actions, including ordering the monitoring of communications
if necessary. Other options include removing the attorney from the case
and prosecutors are always free to initiate criminal proceedings
against attorneys where appropriate. These procedures ensure judicial
review in the narrow band of cases where an attorney is abusing the
attorney-client privilege, protect legitimate attorney-client
communications, and ensure that authorities have the power to
investigate and prevent criminal activity without obstruction.
Detainees Will Remain in Custody Despite Being Ordered Released By An
Immigration Judge
On October 29, the Department of Justice implemented without
comment new regulations that allow INS to obtain an automatic stay of
an immigration judge's order releasing many immigration detainees from
custody, whether on bond or without bond. In order to stop the decision
of the impartial immigration judge from taking effect, the INS must
simply complete a form (EOIR-43), indicating that the INS is
considering appealing the judge's order. The INS then has 10 days to
decide whether to appeal; meanwhile the judge's release order is stayed
and the person cannot be released. If the INS appeals the immigration
judge's order, the stay of the judge's order continues indefinitely,
until the Board of Immigration Appeals decides the merits of the
appeal. It is not unusual for Board of Immigration Appeals to take
months to decide a bond appeal.
The regulation fixes a system that is not broken. The Immigration
Courts and the Board of Immigration Appeals administered the
preexisting bond redetennination system in a cautious, careful manner.
There were no incidents in the aftermath of September 11 where
noncitizens were released on bond because the BIA did not respond
timely to an INS request for a stay: The Board promptly granted stays
on an interim basis as requested by the INS via brief, summary motions.
It also granted the INS time to thoroughly brief its position, and even
add evidence to the record as part of its appeal.
Two examples of noncitizens who were held on very slim suspicions
related to September 1 I suggest that if anything operation of the
preexisting system was cautious in the extreme. Mr. Al-Maqtari's case
is one. As you have just heard, there was no rush to judgement in his
case. Despite the fact that the evidence against him was minimal, and
the INS committed serious procedural violations in his case, arresting
him with an invalid warrant, serving him an invalid charging document,
and changing his bond status without notice, the Immigration Judge and
the Board of Immigration Appeals gave the INS every opportunity to make
its case. The Judge granted repeated continuances for the INS to come
forward with evidence against Mr. Al-Maqtari. The Board of Immigration
Appeals allowed the INS ample time to brief its case and let the INS
submit its only documentary evidence, an FBI agent's affidavit, on
appeal, after the evidentiary hearing had closed.
In a similar case, Hady Hassan Omar, an Egyptian antiques dealer,
was held from September 12 until November 23, 2001. The principal
evidence against him was that he had made travel reservations on
travelocity.com for a flight from Florida to Texas using a computer at
a Kinko's branch in Boca Raton, Florida that two terrorists had
previously used. On October 19, 2002, an Immigration Judge in Oakdale,
Louisiana held a bond hearing and set a $5,000 bond in Mr. Omar's case.
Despite the weakness of its case, the INS sought a stay of the
Immigration Judge's order. The BIA granted a temporary stay that day.
More than a month later, Mr. Omar was released on bond.
In these cases, the government was given every courtesy, while
innocent people spent weeks in detention even though the cases against
them were very weak. This is not a system that needs to be tilted
further in favor of the government. The preexisting system gave the INS
a fair opportunity to present its case, and eventually, the system
brought a fair result for the detained noncitizens. It should be
restored.
In the end, the INS dropped its insistence on detaining Mr. Al-
Maqtari because it had no evidence. Unfortunately, because of the new
automatic stay regulation, even when it has no evidence, the government
retains the upper hand. By invoking the automatic stay, the government
can insure weeks - and usually months - of continued detention for a
noncitzen regardless of how weak its case is.
On November 6, 2001, the INS reported to the Immigration Court in
Memphis that the FBI had ended its investigation of Mr. AI-Maqtari and
offered to stipulate to a bond of $10,000. Mr. Al-Maqtari had little
choice but to agree to the INS' offer. If the immigration judge had
granted a lower bond, and the INS had filed the automatic stay form, he
would have remained in jail for weeks and probably months more.
Fortunately, Tiffany Al-Maqtari had $10,000 to pay her husband's bond.
They accepted the INS' deal and he was freed. How many other
noncitizens will be granted a fair bond by an Immigration Judge, but
suffer months of unwarranted detention, in the kinds of degrading
conditions that Mr. Al-Maqtari described, because of the automatic stay
regulation?
Conclusion
The rules that were in place prior to promulgation of these new
regulations by the Justice Department provided procedures for the
government to deal quickly and effectively with any exceptional
problems that arose. An aberrant bond order could be stayed by filing a
motion with the BIA, a wiretap order could be obtained against a rogue
attorney, etc. These preexisting regulations were the rules that
Congress understood and relied on when it passed the USA PATRIOT Act.
The new rules erode the rights of noncitizens in the United States. As
the examples I have discussed show, the problem is not theoretical, but
real, with innocent people suffering unjust treatment daily. Most
likely, many more people--those without attorneys or family members to
press their case--are also suffering injustice.
We must fact the difficult challenges ahead with this important
understanding: we are a nation of immigrants, with a Constitution and
due process rights that distinguish us from the rest of the world. Our
diversity and our Constitution have given us our identity. They are
central to who we are as a country, and help explain our success as a
people and a nation. We need to protect those rights and reject the
excessive measures instituted by the Department of Justice.
Thank you again for this opportunity to testify, and I will be
happy to answer any questions that you may have.
Senator Feingold. Our next witness is Victoria Toensing.
Ms. Toensing was a Deputy Assistant Attorney General in the
Criminal Division during the Reagan administration, where she
helped establish the Justice Department's Anti-Terrorism Unit
and was responsible for investigating and indicting several
high-profile terrorists. She is currently a partner at the
Washington, D.C. law firm of diGenova and Toensing and she has
had a very recognizable face from having appeared on many
television news programs to discuss legal issues. I thank you
for joining us and the floor is yours.
STATEMENT OF VICTORIA TOENSING, DIGENOVA AND TOENSING, LLP, AND
FORMER DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Ms. Toensing. Thank you, Mr. Chairman, and thank you very
much for inviting me to testify. I assume the invitation was
not only because, as a former Justice Department official, I
supervise many international terrorism investigations, but also
I am a student of the Senate. I was former Chief Counsel for
Barry Goldwater for the Senate Intelligence Committee and I
understand that relationship between law enforcement and
intelligence issues, a relationship that really is at play in
the aftermath of September 11.
You have my complete statement, so I will spare you the
reading of it, but I do want to make a few points, and one of
them is an overall--two overall observations about what we are
going through right now, and I say this as a veteran law
enforcement lawyer.
We need to appreciate the context in which we are
discussing these initiatives. September 11, I hope we can all
agree, was an illegal act of war. It was not a crime. And so
when we are trying to decide responses off the battlefield,
non-military responses to September 11, we do have to start
thinking outside the box of the criminal justice system.
Also, never before in my 15 years as a government lawyer or
in my 13 years as a defense attorney have I seen prevention of
the next act the primary goal as opposed to the investigation
of the malfeasance that has occurred, and that is very
different for me and I have a sensitivity to that, but I can
see it from the Justice Department and I can see it from the
conduct and for the need for different tools because we have
never really fought that way in an investigation, if I may call
it that, because it is an investigation to prevent as well as
an investigation to find people responsible for September 11.
I want to just touch on the military tribunal. I know you
had a thorough hearing this morning. I enjoyed every minute of
it. But I have been there. I have been when I know the foreign
government has the tape and on the tape is the terrorist's
words showing he was responsible for a terrorist act where a
U.S. citizen was a victim, and yet we could not get the tapes.
We should have prosecuted. We could not get the tape because
the foreign government said, I am not giving it to you if it is
going to become public in a U.S. trial, and I say in this
situation of the terrorism war, I do not think we can let the
guilty go free.
Let me talk briefly about the detention of aliens, and
there are a number of issues here which is probably better
saved for the questions and answers, but I just want to touch
on one, and that is I know that the ACLU will later argue that
the names of the detainees should be released to the public,
and I say that there are valid, not only just law enforcement
reasons why they should not, but also privacy interests of the
detainees.
Every one of those detainees, as is Mr. Al-Maqtari, is free
to come and announce that he or she has been detained, but I
find it also of quite valid law enforcement interest. What if
one of those detainees agrees to cooperate and then we want to
release that detainee to go out and work back into a cell that
he says is existent in the United States? The fact that it
would be known that he would be detained and has been working
or talking to the U.S. Government is a very valid law
enforcement rationale for not releasing the names.
One last point I would like to touch on is the monitoring
of attorney-client conversations. When I was Deputy Assistant
Attorney General, we monitored conversations of clients with
their attorneys, but these were unconvicted targets in
organized crime and their counsel. So as a matter of government
policy, this is not new. That privilege has been pierced long
ago when there is evidence that the lawyer may be furthering
the crime. And so with the proper safeguards that I agree are
necessary not to chill the attorney-client privilege when there
is valid legal information being communicated, we need that
tool, also, in our arsenal.
Senator Feingold. Thank you very much, Ms. Toensing.
[The prepared statement of Ms. Toensing follows:]
Victoria Toensing, Attorney, diGenova & Toensingformer Deputy Assistant
Attorney General
The carnage of September 11, 2001 was neither a crime nor an act of
war. The attack on civilians was an illegal act of war intended to
destroy our American society. As such, it is beyond the scope of our
criminal laws. Just as important, our goal in responding to September
11 cannot be limited to punishing the perpetrators. Foremost, the goal
is prevention. The U.S. government must fulfill the nation's primary
responsibility: protection of its citizens.
Because of these considerations, the Department of Justice and
White House have initiated three proposals: 1) the option to try non-
U.S. citizen belligerents before military tribunals, 2) detention of
aliens for immigration violations and, for a reasonable time, to
investigate suspicious facts of terrorism involvement, and 3)
monitoring inmates' conversations with counsel when there is a basis to
believe the inmate may use such communications to facilitate acts of
terrorism. With proper safeguards, all are necessary tools in our
response to the terrorism attacks and threats of future violence.
Military Tribunal
The Supreme Court has upheld military tribunals for unlawful
belligerents charged with acts of war. The constitutionality of
tribunals is not at issue. The relevant discussion is whether the
policy is wise. As a former Justice Department official who supervised
international terrorism cases, I know the President must have that
option.
A federal trial in the United States would pose a security threat
to the judge, prosecutors and witnesses, not to mention the jurors and
the city in which the trial would be held. We do not have sufficient
law enforcement personnel to provide these trial participants round-
the-clock armed protection, the type of security still in place for the
federal judge who tried Sheik Rahman in 1993. A federal trial in the
United States may preclude reliable evidence of guilt. When the
evidence against a defendant is collected outside the United States
(the usual situation for international terrorism investigations)
serious problems arise for using it in a domestic trial. The American
criminal justice system excludes evidence of guilt if law enforcement
does not comply with certain procedures, a complicated system of rules
not taught to the Rangers and Marines who could be locked in hand-to-
hand combat with the putative defendants. For sure, the intricate
procedures of the American criminal justice system are not taught to
the anti-Taliban fighters who may capture prisoners. Nor to the foreign
intelligence agencies and police forces who will also collect evidence.
At just what point is a soldier required to reach into his flak
jacket and pull out a Miranda rights card? There are numerous
evidentiary and procedural requirements of federal trials that
demonstrate the folly of anyone thinking such trials should be used in
wartime for belligerents. Below is a sampling of the legal questions
facing the prosecutor:
Does the Speedy Trial Act start running when the combatant is
captured?
Should the Miranda rights be given in Arabic? Which dialect?
If the belligerent wants a lawyer and cannot afford one should
she be sent at taxpayer expense to Kabul to confer with her
client?
Does the requirement that an arrested person must appear before
a federal magistrate within several days to enter a plea apply?
What happens when all the evidence showing guilt is not
admitted because it was collected by a foreign police force
using procedures not in compliance with United States
Constitutional standards?
What happens when all the evidence showing guilt is not turned
over to the United States because a foreign intelligence agency
does not want to reveal sources and methods?
For evidence to be used against the defendant, how does the
prosecution establish chain of custody, an impossible procedure
on the battlefield?
In the aftermath of September 11, it is not necessarily true that
an American jury would be the fairest deciders of guilt. If the
judicial system thought Timothy McVeigh could not get a ``fair'' trial
in Oklahoma, where in the United States is there an impartial jury for
September 11?
Detention of Aliens
Our federal investigators have been assigned a mission that
requires Divine prescience: they are being asked to know when the
Middle-Eastern Muslim with the box cutter and immigration violation is
a potential murderer or a peaceful, loving husband.
Law enforcement is charged with preventing future attacks, a task
burdened with quick decisions and instant analysis. Law enforcement is
also charged with investigating the crime, a task calling for thorough,
thoughtful investigation. Sometimes the two tasks occur simultaneously
with the same person as the subject. Unfortunately, there are times law
enforcement gets it wrong as they did with Ali Al-Maqtari. But,
ultimately the system worked and he was released.
The responsibility of the U.S. government is to establish and
follow procedures to ensure the detainees have access to counsel so
that cases lacking evidence proceed swiftly through the process. The
cure is not to release detainees back out on the streets of America
when suspicious conduct remains unchecked. The solution is to make the
process responsive so any irregularities can be brought to the
attention of the Department of Justice or Congress, if the Department
does not resolve the problem. All detainees charged with crimes should
have counsel, paid for by U.S. taxpayers if appropriate. All detainees
charged with immigration violations should have access to counsel and
be provided lists of pro bono attorneys if they cannot afford one.
Monitoring Inmate Conversation With Counsel
Perhaps we could find points of agreement on this issue. I suggest
the following:
The attorney-client privilege was created as integral to the
Sixth Amendment right to counsel.
The attorney-client privilege is not absolute.
The attorney-client privilege protects only discussions about
legal matters.
If an inmate uses his or her counsel to further a crime,
specifically an act of terrorism, there is no privilege for the
conversation.
If the government has credible evidence an inmate is using his
or her lawyer to abet a terrorist plot it has the
responsibility to learn of the crime and must act to prevent
it.
Government conduct should not chill an inmate's right to counsel
for all matters legal.
The problem is how to balance the government's responsibility to
protect Americans from terrorism without chilling legitimate counsel
conversations. The Attorney General established safeguards to protect
privileged communication where, based on credible information, there is
evidence the attorney-client relationship is being misused to further
terrorism. Those safeguards are as follows:
The inmate must be subject to SAM (special administrative
measures), which is a prior finding the inmate's
``communications or contacts with persons could result in death
or serious bodily injury. . .or substantial damage to property
that'' includes ``risk of death or serious bodily injury. . .
.''
The inmate must also be detained in a terrorism related case.
The Attorney General must receive information from the head of
a federal law enforcement or intelligence agency that
reasonable suspicion exists to believe a particular detainee
may use communications to further or facilitate acts of
terrorism.
The Attorney General must make a separate finding of reasonable
suspicion to believe the communications may be used in
furtherance or to facilitate terrorism.
Before monitoring begins, the inmate and counsel must be given
notice of the monitoring.
The monitoring personnel cannot be involved in the underlying
investigation.
The monitoring personnel shall use procedures to minimize
hearing privileged conversations.
Unless disclosure has been approved by a federal judge, the
monitoring personnel shall not disclose any information except
where violence is imminent.
In addition to these guidelines, I suggest the following be
considered:
Upon notice of potential monitoring, the detainee could be
given the option to change counsel to one having a government
security clearance.
Congress could pass legislation enabling a FISA like court (or,
without legislation, use the FISA court) to review the finding
of reasonable suspicion to believe the inmate may use
communications to further acts of terrorism. No matter what
judicial-type body is used, the standard should not be the more
onerous probable cause of a Title III wiretap.
Senator Feingold. Now we turn to Gerry Goldstein. He is a
highly respected criminal defense lawyer, past President of the
National Association of Criminal Defense Lawyers and was named
outstanding criminal defense attorney by the State Bar of Texas
in 1991. Mr. Goldstein represents Dr. Al-Badr Al Hazmi, a
radiologist in Texas who was detained in connection with the
September 11 attack investigation. I thank you also for joining
us and you may proceed.
STATEMENT OF GERALD H. GOLDSTEIN, ESQ., GOLDSTEIN, GOLDSTEIN
AND HILLEY, SAN ANTONIO, TEXAS, ON BEHALF OF THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
Mr. Goldstein. Thank you, Mr. Chairman, distinguished
members of the Committee.
Let me begin by responding briefly to the able and eloquent
colleague who spoke on the previous panel and described the
inscription at the base of the Statue of Liberty. Perhaps in
retrospect we should amend that inscription to, bring me your
poor, your huddled masses, and we will jail them as illegal
aliens, subject them to secret proceedings, and eavesdrop on
their conversations with their lawyers.
My concern in this process is the description that I keep
hearing from the Department of Justice, lawyers who I have
known and respect, that no one's right to counsel has been
interfered with. On September 12, the day after these tragic
events both in our country's capital and the City of New York,
I was retained to represent Dr. Al Hazmi, who at some 5:00 a.m.
in the morning--he is a radiologist in residency at the
University of Texas Health Science Center. He was studying
those early morning hours for his medical boards. They were two
days hence. Federal agents entered his home, searched for some
six hours, and took him into custody.
Later that afternoon on September 12, he was allowed a
brief telephone call to my office. He told me that he was in
immigration custody and requested that I ascertain why he was
being held. The phone was immediately taken by an INS special
agent, who advised me that he could give me no other further
information, including the whereabouts of where my client was
being held, and referred me to a supervising agent.
I then immediately began telephoning that supervising agent
that afternoon and the next day. There is a letter which the
Committee has as part of my testimony, which I appreciate and
acknowledge has been made a part of the record, and expressed
my concern about the whereabouts of my client and requested an
opportunity to speak with my client, and at that time, that
supervising agent advised me that he would be unable to give me
any information about my client, the reasons for his detention
or his whereabouts, and, in fact, referred me again to an
attorney with the Immigration Service Trial Litigation Section.
My client advises that he repeatedly requested an
opportunity to speak with his counsel, to talk to his wife and
call his wife, that those requests were denied. Rather than
facilitating those requests, the request to speak with his
counsel, in fact, the government agents, in this case, FBI
agents, continued to interrogate my client, and I think all
lawyers would agree, in clear violation of Edwards v. Arizona
and Minnick v. Mississippi.
I then hired an immigration lawyer, an able lawyer by the
name of Bob Shivers, who is a member of Mr. Boyle's
association, and both of us, Mr. Shivers and I, filed Form G-28
notices of representation on behalf of Dr. Al Hazmi. So the
government now had a letter and our formal notices of
appearance.
In the meantime, the immigration lawyer notified on
September 14 the Director of Immigration Service for our
district. He sent a letter to him detailing our efforts to find
our client, locate his whereabouts, and consult with him, as he
had requested.
When I reached the supervising agent finally the next day,
he advised me that he would be unable, again, to give me any
information and I received a return call from the attorney with
the Litigation Section. He advised, as well, that he could not
speak to me about my client, could not give me any information
with respect to his whereabouts or why he was being retained.
Thereafter, the District Director of Immigration did call
us back. He advised us that he, as well, could not give us any
information about why our client was being detained, but
informed us that by this time, our client had been, as he put
it, removed from the jurisdiction.
I then sent a letter to the appropriate Department of
Justice officials, including the Assistant United States
Attorney who I had been advised was assigned the case, again,
detailing our efforts to speak with our client, our desire to
locate his whereabouts, which we still did not know other than
he had been taken out of our jurisdiction, and our need to
consult with him.
Some three days later, I was informed that my client had
been taken by FBI agents by airplane from San Antonio, Texas,
to the detention facility in Lower Manhattan in New York City.
I then immediately retained a local attorney, another former
President of the National Association of Criminal Defense
Lawyers, in an attempt to contact my client. However, he was
informed the following day when he went to the detention
facility in Manhattan that, in fact, he would not be allowed to
see my client because the court had appointed another attorney
to represent my client, I might add, without my client's
knowledge.
What concerns me, in closing, is that the Department of
Justice has denied that--by the way, four days later, on
September 24, my client was cleared by the FBI and released.
What concerns me is the statement that no detainees have been
held incommunicado, suggesting that any interference with the
right to counsel has been due to time constraints and
administrative shortcomings.
Dr. Al Hazmi was not someone who simply slipped through the
bureaucratic cracks. He was someone whose lawyers had entered a
formal notice of appearance and representation, whose lawyers
had communicated in writing with the appropriate investigative
agencies and the Department of Justice of their concerns, of
their desire to locate and know the whereabouts of their
client, of their interest in consulting and speaking with their
client. But rather than facilitating these requests, the FBI
sends us on a wild goose chase, as did the Immigration Service
and the Department of Justice officials, while they continued
their interrogation.
I might add that by denying Dr. Al Hazmi access to his
retained counsel, Federal law enforcement officials not only
violated his rights and perhaps would have jeopardized a
prosecution had he been guilty of something, but perhaps more
important to them, they deprived themselves of valuable
information and documents that we had that would have explained
many of the concerns that they later expressed.
Senator Feingold. Mr. Goldstein, I have to ask you to
conclude.
Mr. Goldstein. In essence, they prolonged the investigation
and wasted valuable time at a time they had very little time to
spare.
Senator Feingold. I thank you very much for your testimony.
[The prepared statement and attachments of Mr. Goldstein
follow:]
Statement of Gerald H. Goldstein, Attorney, National Association of
Criminal Defense Lawyers, San Antonio, Texas
Gerald H. Goldstein, of San Antonio, Texas, is a Past President of
the National Association of Criminal Defense Lawyers (NACDL) and its
Texas affiliate. He graduated from Tulane University in 1965, and then
attended the University of Texas School of Law. Since graduating in
1968 from law school, he has dedicated his practice to the
representation of those accused of criminal offenses. He is a certified
Specialist in Criminal Law, and a Fellow in the American College and
the International Academy of Trial Lawyers.
His law firm, Goldstein, Goldstein & Hilley, devotes approximately
15-20% of its time to pro bono work. He has served as counsel in
numerous civil rights cases, many of which vindicated the rights of
prisoners to be free from excessive (and sometimes fatal) force,
inadequate medical care, and inhumane living conditions. He has also
served as appellate counsel for death row inmates and has defended the
First Amendment rights of farmers and religious organizations. In
several important matters before the United States Supreme Court, he
has served as counsel of record for the National Association of
Criminal Defense Lawyers as amicus curiae.
In addition to his practice, for the past twenty years he has
served as adjunct professor of advanced criminal law at the University
of Texas School of Law in Austin, Texas, and St. Mary's University
School of Law in San Antonio, Texas. He is a member of the Board of
Regents of the National Criminal Defense College and lectures
frequently on criminal law and procedure at continuing legal education
seminars throughout the United States.
Mr. Chairman and Distinguished Members of the Committee:
In the early morning hours of September 12, 2001, Dr. Al-Badr Al
Hazmi, a fifth-year radiology resident at the University of Texas
Health Science Center in San Antonio, Texas, was studying for his
upcoming medical board exams, when federal law enforcement agents
entered his home, searched the premises for some six hours, and took
Dr. Al Hazmi into custody. Immigration authorities transported Dr. Al
Hazmi to the nearby Comal County Jail.
Later that afternoon, Dr. Al Hazmi was allowed a brief telephone
call to my office, at which time he explained that he was being held by
United States Immigration authorities and inquired as to the reasons
for his detention. Almost immediately, an Immigration and
Naturalization Agent took the telephone and told me that he could
provide no information regarding the reason for my client's detention,
nor his whereabouts; he then referred me to his ``supervisor.''
After my numerous telephone calls to the supervising agent on
September 12th and 13th went unanswered, I wrote a letter to the
Immigration and Naturalization Service, seeking to ascertain the
whereabouts of my client and requesting an opportunity to communicate
with him. In no uncertain terms, my letter explained:
I am concerned with regard to the status of [Dr.] Al Hazmi and am
requesting that information regarding his status and provisions for my
office to communicate with him be provided at your earliest
convenience. . . .In light of your unavailability and my expressed
concern regarding the need to communicate with [my client], I am
copying this letter to the United States Attorney's Office in the hopes
that they may help facilitate same. (See attached letter to INS Agent,
dated September 13, 2001).
Dr. Al Hazmi's repeated requests to consult with his attorney were
ignored, as authorities continued to interrogate him. As he would later
tell a reporter, ``Nobody explained to me anything, they just kept
saying, `Later, later,'. . .I said, `I need to call my lawyer.' They
said, `Later.' `I need to call my wife.' They said, `Later.' ''
Macarena Hernandez, Prayers Answered, Dr. Al-Hazmi Details How Faith
Aided Him During His Detention, San Antonio Express-News, Sept. 30,
2001, at 1A.
On September 13, 2001, my office retained an immigration attorney,
and both counsel filed formal ``Notice[s] of Entry of Appearance as
Attorney'' on INS Form G-28. (See attached Forms G-28, Notices of
Appearance as Attorneys for attorneys Gerald H. Goldstein and Robert A.
Shivers).
When I was finally able to reach the ``supervising'' INS agent, on
September 14, 2001, he advised that he too was unable to provide me
with access to, or any information regarding my client, referring me
instead to an attorney with the Immigration Services' Trial Litigation
Unit.
However, when I reached the Immigration Services' attorney, he
advised that he could not speak to me about Dr. Al Hazmi and would not
provide any information regarding the whereabouts of my client.
On that same day, Mr. Shivers, the immigration attorney hired by
our firm, sent a letter to the District Director of the Immigration
Service, detailing counsels' repeated attempts to determine the
whereabouts of our client, again requesting an opportunity to consult
with Dr. Al Hazmi, and expressing his concern that ``misrepresentations
were knowingly made to prevent our consulting with our client.'' (See
attached letter to INS District Director, dated September 14, 2001).
I then sent a letter to the acting United States Attorney for our
district (copying the Assistant United States Attorney whom I had been
advised was assigned the case), again attempting to ascertain the
whereabouts of my client and making a ``formal demand'' for an
opportunity to consult with him, thus:
What is of particular concern to me is that despite prior notice to
your office . . .of my client's desire to communicate with counsel and
my attempts to locate and speak with him, my numerous calls to your
offices have gone unanswered. A . . .trial counsel for INS did call me
back only to advise that he could not talk to me or even advise me
where my client was being detained. . . .After both Mr. Shivers and I
filed our respective representation forms, and after Mr. Shivers spent
the better part of the day attempting to locate and visit our client,
[the] INS District Director . . .advised that our client had been
placed on an airplane and removed from this `jurisdiction.' Even an
individual being deported . . .is entitled to be represented by
counsel, and a reasonable opportunity to consult with their counsel.
Accordingly, I am hereby making another formal request for same. (See
attached letter to U.S. Attorney, dated September 14, 2001).
Earlier that day, Dr. Al Hazmi had been taken by FBI agents to New
York, and held in a lower Manhattan detention facility, without an
opportunity to contact his family as to his whereabouts or have any
contact or consult with his attorney.
The following sequence of events brought this Kafkaesque experience
to a conclusion:
On September 17, 2001, almost a week after my client had been taken
into custody, I was advised that he was being detained by Federal
authorities in New York City.
On September 18, 2001, local New York counsel, hired by my office,
was advised by the detention facility authorities that he would not be
permitted to visit with Dr. Al Hazmi, because the court had appointed a
different lawyer to represent him, without Dr. Al Hazmi's knowledge.
On September 19, 2001, the local counsel hired by my office was
permitted to visit with Dr. Al Hazmi at the Manhattan detention
facility. On September 24, 2001, the FBI cleared and released Dr. Al
Hazmi. He returned home to San Antonio the following day.
The Department of Justice has denied that any of the detainees are
being held incommunicado, suggesting that any interference with the
right to counsel was due to time compression and administrative
shortcomings. However, as the above scenario demonstrates, Dr. Al Hazmi
was not someone who simply ``slipped through the cracks.'' Dr. Al Hazmi
was represented by retained counsel who had filed formal notices of
appearance on behalf of their client. Moreover, Dr. Al Hazmi's
attorneys had notified the appropriate law enforcement agencies and the
Department of Justice in writing, requesting the whereabouts of their
client and expressing their desire to communicate with him. Despite
these efforts--and despite Dr. Al Hazmi's repeated requests to consult
with his counsel--Federal authorities stonewalled and continued to
interrogate Dr. Al Hazmi in the absence of his counsel.
By denying Dr. Al Hazmi access to his retained counsel, Federal law
enforcement officials not only violated my clients rights, they
deprived themselves of valuable information and documentation that
would have eliminated many of their concerns. Their obstructionism
prolonged the investigative process, wasting valuable time and precious
resources.
Dr. Al Hazmi's experience, when viewed in conjunction with the
Department of Justice's and various law enforcement agencies' policies
that interfere with attorney-client relations, suggests that this
Committee's continued vigilance is warranted.\1\
---------------------------------------------------------------------------
\1\ For example, eleven Israeli Citizens were presumably mistaken
for Arabs and arrested in Ohio for working without authorization while
visiting the United States on tourist visas. They were visiting this
country after completing military service in Israel, where several had
served in counter-terrorism units. In hours-long interrogation by the
FBI, the Israelis were told that getting counsel involved would only
complicate things and prolong their detention. Nine of the eleven were
detained for more than two weeks and two were detained for a month. All
have now been granted voluntary departure. John Mintz, 60 Israelis on
Tourist Visas Detained Since Sept. 11, Washington Post, Nov. 23, 2001,
at A22; Tamar Lewin & Alison Leigh Cowan, Dozens of Israeli Jews Are
Being Kept in Federal Detention, New York Times, Nov. 21, 2001; NACDL
interview with David Leopold, Esq., Cleveland, Ohio, counsel for the
detainees.
According to counsel for the detainees, during the course of the
questioning at least one of the Israelis was asked ``how much torture
can you stand before you tell the truth.'' The FBI also repeatedly
asked the Israelis who sent them to the United States, whether they
took any pictures of tall buildings and whether they had any Israeli
intelligence connections or role. Each was also asked whether he or she
was Muslim and whether they had visited a mosque in Toledo, Ohio. On
the night of their arrests, the two women in the group were subjected
to a humiliating ``pat down'' by a male INS officer as a prerequisite
to their use of the restroom. The male INS officer claimed there were
no longer any female officers present at INS Headquarters.
---------------------------------------------------------------------------
The right to the assistance of counsel is the cornerstone of our
adversarial system. One need only read Miranda v. Arizona, which
recounts the widespread abuses that plagued our nation's interrogation
rooms, to fully appreciate the risks that accompany any abrogation of
the right to counsel. Miranda v. Arizona, 384 U.S. 436, 445-446 & n.7
(1966) (providing examples of abuses and explaining that ``[t]he
difficulty in depicting what transpires at such interrogations stems
from the fact that in this country they have largely taken place
incommunicado. '').
These are among the concerns that mandate a right to representation
not only when one is charged with a crime, but when one is subjected to
custodial interrogation as well. It is well-established that once an
individual in custody requests counsel, all further questioning must
cease. Edwards v. Arizona, 451 U.S. 477 (1981); Minnick v. Mississippi,
498 U.S. 146 (1990).
The government's current dragnet-style investigation--characterized
by ethnic profiling, selective enforcement of criminal and immigration
laws, and pretrial detention for petty offenses--heightens the
important role counsel plays from the very inception of custody.\2\
---------------------------------------------------------------------------
\2\ A separate issue, and one that will be discussed more fully by
other groups, is the extent to which these ethnically biased law
enforcement tactics violate the Constitution and international laws,
and tarnish our country's image. Singling out non-citizens for
disparate treatment raises serious constitutional questions. See Yick
Wo v. Hopkins, 118 U.S. 356 (1886). As the Supreme Court recently
reaffirmed, the Fifth Amendment protects all non-citizens, even those
here unlawfully, from deprivation of life, liberty or property without
due process of law. Zadvydas v. Davis, 121 S. Ct. 2491, 2500-2501
(2001). Policies which evade these protections not only erode minority
and immigrant confidence in law enforcement, but undermine efforts to
obtain adequate rights and protections for United States citizens
traveling abroad.
---------------------------------------------------------------------------
The interests protected by defense counsel go beyond the procedural
protections guaranteed by the Bill of Rights. As recognized by the
Innocence Protection Act, introduced by Chairman Leahy and supported by
NACDL, without the effective representation of counsel, not only are
innocent persons incarcerated or worse, but the guilty go free.
The right to counsel also serves as an invaluable check on the
illegitimate or indiscriminate use of government power. At no time is
this right more important than when the government has acquired or
claimed sweeping new powers. As Justice Brandeis said in his famous
dissent, ``Experience should teach us to be most on our guard to
protect liberty when the government's purposes are beneficent. . . .The
greatest dangers to liberty lurk in insidious encroachment by men of
zeal, well-meaning but without understanding.'' Olmstead v. United
States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).
The USA PATRIOT Act gave broad new powers to federal law
enforcement in the areas of eavesdropping and electronic surveillance,
search and seizure, money laundering, criminal and civil asset
forfeiture, information sharing (e.g., erosion of wiretap and grand
jury secrecy rules), and detention of non-citizens. To determine
whether these powers are being exercised in a responsible manner or
whether they are being abused, and therefore need to be curtailed,
public disclosure and oversight is essential. This accountability is
enhanced by defense lawyers, many of whom have already brought their
cases of abuse to public light.
While my client has been completely absolved of any wrongdoing or
connection to the acts of terrorism, I am still prohibited by court
order from discussing certain aspects of the case. The extraordinary
secrecy which has characterized the post-9/11 investigation has made it
difficult for defense lawyers to discuss the facts surrounding their
clients' detentions and impossible for the public to gain a complete
picture of the government's tactics. Many of my colleagues who
represent past or current detainees share my view that this veil of
secrecy serves only to shield the government from criticism.
Before concluding, I would like to discuss one more issue, which is
closely related to the denial of access to counsel. On October 31, the
Federal Bureau of Prisons published notice in the Federal Register of a
new rule giving the Federal government authority to monitor
communications between people in Federal custody and their lawyers if
the Attorney General deems it ``reasonably necessary in order to deter
future acts of violence of terrorism.'' Instead of obtaining a court
order, the Attorney General need only certify that ``reasonable
suspicion exists to believe that an inmate may use communications with
attorneys or their agents to facilitate acts of terrorism.'' Until now,
communications between inmates and their attorneys have been exempt
from the usual monitoring of other calls and visits at the 100 federal
prisons around the country.
NACDL joins the American Bar Association and the vast majority of
the legal profession in denouncing this new policy. The attorney-client
privilege--``the oldest of the privileges for confidential
communications known to the common law''--is the most sacred of all the
legally recognized privileges. Its root purpose is ``to encourage full
and frank communications between attorneys and their clients and
thereby promote broader public interests in the observance of law and
administration of justice. The privilege recognizes that sound legal
advice or advocacy serves public ends and that such advice or advocacy
depends upon the lawyer's being fully informed by the client.'' Upjohn
Co. v. United States, 449 U.S. 383, 389 (1981).
Based on my 32-years experience, defending persons from all walks
of life, I can tell you that the crucial bond of trust between lawyer
and client is hard-won and easily worn. This is particularly true when
the attorney must bridge cultural, ethnic and language differences. Any
interference from the government can permanently damage this
relationship, threatening the defendant's representation and the
public's interest in a just and fair outcome--not to mention the
government's interest in obtaining cooperation in its investigations.
In all likelihood, the mere specter of monitoring will complicate the
already difficult endeavor of communicating effectively with
incarcerated clients and will chill the delicate relationship between
the accused and his advocate.
* * *
NACDL is the preeminent organization in the United States advancing
the mission of the nation's criminal defense lawyers to ensure justice
and due process for persons accused of crime or other misconduct. A
professional bar association founded in 1958, NACDL's 11,000 direct
members--and 80 state and local affiliate organizations with another
28,000 members--include private criminal defense lawyers, public
defenders, active-duty U.S. military defense counsel, law professors
and judges committed to preserving fairness within America's criminal
justice system.
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Senator Feingold. Our next witness is Steven Emerson. Mr.
Emerson is a researcher, journalist, and author focusing on
terrorism and national security. He is also the Executive
Director of The Investigative Project, which he started in 1995
following the broadcast of his controversial documentary film,
``Jihad in America.'' Prior to his career in journalism, Mr.
Emerson was a professional staff member of the United States
Senate Foreign Relations Committee. Mr. Emerson, thank you for
joining us today and you may proceed.
STATEMENT OF STEVEN EMERSON, EXECUTIVE DIRECTOR, THE
INVESTIGATIVE PROJECT, WASHINGTON, D.C.
Mr. Emerson. Thank you very much. First of all, unlike
everybody else on this panel, I am not a lawyer and neither do
I play one on TV and I am not an expert in constitutional
procedures. I am here only to provide some expertise about the
degree of the terrorist threat that exists in the United States
and the magnitude of the deception used by terrorists in
planting themselves on American soil.
Toward that end, I would like to be able to show an excerpt
of the film, if it is okay with the chairman.
Senator Feingold. You may use the allotted time as you
wish, but I am not going to be able to extend it beyond the
time I have allotted others.
Mr. Emerson. Could I--
Senator Feingold. You can show the video if you wish or
testify.
Mr. Emerson. Could I borrow the two minutes that Vicki
Toensing did not use, so give me seven?
Senator Feingold. You know, I am going to allow that and no
more.
Mr. Emerson. Can we show it, then, for three minutes, and
then we will just cut it off.
Senator Feingold. Sure.
[A videotape was shown.]
Senator Feingold. I think we are going to turn the tape
off. I have already accorded you Ms. Toensing's two additional
minutes, which is unusual procedure, and you have already
received more time than all the other witnesses, as well as the
representative of the Attorney General's office, but I am going
to give you one more minute to explain the relevance of this to
the detention of innocent people.
Mr. Emerson. Thank you very much, and in any future
testimony, I will gladly surrender my five minutes.
The bottom line is that I want the American public and
American policy makers to be aware of the nature of the
unprecedented threat that exists on American soil and the
extent to which our civil liberties have been exploited and
used by militants who have carried out the worst attack on
American soil in our history.
Senator Feingold. Thank you.
[The prepared statement and attachments of Mr. Emerson
follow:]
Statement of Steven Emerson, Executive Director, The Investigation
Project, Washington, D.C.
Executive Summary
On September 11, 2001, thousands of Americans were executed, most
of them incinerated in the worst terrorist attack on American soil in
the history of the United States. In the wake of this attack, the
President of the United States has declared a war against the
terrorists.
In the war on terrorism, the military component poses the greatest
strategic challenge and incurs the greatest potential for American
casualties. But from the widest political perspective, the greatest
challenge to the United States is the ability to recognize terrorist
groups operating under false cover and veneer. Clearly, the success of
Osama Bin Laden and his Al-Qaeda network has demonstrated, with
murderous consequences, the ability of terrorist groups to hide under
the facade of ``human rights,'' ``charitable'' and ``humanitarian''
cover. In addition, the ability of militant Islamic groups to hide
under the protection of the larger non-violent and peaceful Islamic
community has created a challenge for policymakers and officials, the
likes of which has not been present before in American society. Sleeper
cells that are believed to number in the tens, possibly hundreds, also
constitute a dangerous threat to American society.
As someone who has tracked and investigated the activities of
militant Islamic fundamentalist networks for the past eight years, I am
presenting in the following testimony the results of my recent
investigations into the operations of terrorist networks in the United
States.
The basic findings of my investigative findings are summarized as
follows:
Osama Bin Laden has systematically recruited American passport
holders (like Wadih El Hage, now in prison for his role in the
1998 bombings of the United States embassies in Kenya and
Tanzania) in order to exploit the ease in which these
operatives can travel freely around the world as well as ship
American communications technology to the Bin Laden network.
Bin Laden recruited a United States Special Forces sergeant who
then became the secret head of security for Bin Laden, while
serving as a triple agent, pretending to assist the FBI on
counterterrorism matters, even though he was serving as a top
aide to Bin Laden.
Bin Laden has created front organizations serving under false
cover as groups with missions officially tethered to ``human
rights,'' ``charitable'' and ``humanitarian'' purposes. The
most striking and hitherto secret organization serving under
the false ``human rights'' facade was created by Bin Laden with
offices in London (England), Kansas City (Missouri) and Denver
(Colorado).
Hamas has created a network of cover groups, ``humanitarian
organizations'' and commercial companies in the United States.
Militant Islamic groups based and headquartered in the United
States have exhorted their followers, behind closed doors and
out of the earshot of the American public and media, to carry
out and raise funds for Jihad (in this sense, referring to the
concept of ``holy war '').
Bin Laden has created, exploited and utilized a network of
established charitable conduits throughout the world, including
those headquartered in the United States.
The Islamic Jihad terrorist group secretly set up its
headquarters in the United States to promote the Islamic Jihad
terrorist organization under the false cover of an academic
institute connected to the University of South Florida and a
``humanitarian'' front group.
The events of September 11th may well have been
impossible without the support of individuals and organizations with
ties to al-Qaeda, some of which are still operating in the United
States today. Foreign terrorist organizations have utilized numerous
modes of operation within the United States to facilitate their
fundraising goals. Their infiltration into American society has
occurred through the use of domestic universities, establishment of
innocuous-sounding non-governmental organization entities, and through
the utilization of ``front'' corporations whether they be domestic or
foreign corporations with branches within the United States. The
following are examples of these various modus operandi from actual
situations within the United States.
a. barakaat group of companies: funneling money for al-qaeda on
american soil
The intricate networks of supporters for terrorists exist on the
organizational level, and the Bush administration has responded in
kind. With each passing order by the President and the Treasury
Department, the United States gets one step closer in ridding the
terrorist element from our society. One such success is the
governmental shutdown of the Al-Barakaat Group of Companies, a hawala-
type bank which allegedly funneled money for Osama bin Laden and his
al-Qaeda. A large sum of funds used for terrorism was funneled directly
from multiple branches of Barakaat in the U.S., right under our noses.
Though based in the United Arab Emirates, al-Barakaat has an
abundance of subsidiaries, scattered across the world, with nine of
them in the United States,\1\ including branches in or near Seattle,
Washington DC, Minneapolis, Columbus, and Boston. In particular, the
Boston branch of Barakaat, Barakaat North America Inc., moved more than
two million dollars through an American bank.\2\ The head of Barakaat,
Ahmed Nur Ali Jumale, is said to have befriended Osama bin Laden during
the Afghani war against the Soviets. In 1988, bin Laden donated a
substantial amount of capital to Jumale, initiating the money flow
between al-Qaeda and Barakaat.\3\ The London Daily Telegraph reported
that the Barakaat bank was owned by Al-Ittihad al-Islamiya,\4\ which is
on the list of terrorist organizations whose assets were frozen by
Bush's first Executive Order. The Barakaat Bank of Somalia was also
believed to be sending funds to Al-Ittihad al-Islamiya.\5\
---------------------------------------------------------------------------
\1\ Ron Fournier. ``U.S. moves on Islamic money exchanges in
Minnesota, elsewhere.'' The Associated Press. November 7, 2001.
\2\ Ibid.
\3\ David E. Sanger and Kurt Eichenwald. ``A NATION CHALLENGED:
MONEY TRAIL; U.S. MOVES TO CUT 2 FINANCIAL LINKS FOR TERROR GROUP.''
The New York Times. ovember 8, 2001.
\4\ ``Banks-to-terror conglomerate faces US wrath Somalia'' The
Daily Telegraph (London). September 28, 2001.
\5\ ``European Authorities Arrest 3 Allegedly Linked to Al Qaida''
Associated Press. October 10, 2001.
---------------------------------------------------------------------------
Barakaat clearly flourished on American soil, incorporating in at
least five states and working clandestinely as a benign money-transfer
business. This organization could be one of many supposedly legitimate
businesses that reside within the United States. It is therefore
imperative that suspicious organizations be scrutinized to the fullest
extent within which the law will allow. Cutting off the money flow to
terrorist organizations and their supporters is an integral part of the
war against terrorism. The war is now on our soil, and our enemy comes
in many forms, including American businesses.
While businesses must be examined thoroughly, we must not forget to
look at the fundamental base of these organizations-people who actively
support the terrorist agenda. Terrorists make up these organizations,
and they have exploited the United States and its liberties in every
way possible.
b. u.s. passport holders: terrorist candidates
American passport holders are recruited by terrorist groups
enabling these operatives to move easier, risking less suspicion than
their counterparts who hold foreign passports. There are documented
cases of individuals traveling in and out of the United States on their
American passports to deliver money, weapons and technical equipment
such as satellite phones. This method of operation is used by various
terrorist groups such as Hamas who used Muhammad Salah, an American
naturalized citizen, to travel to Israel using his American passport to
enter Palestinian territories carrying hundreds of thousands of
dollars.
The Al-Qaeda network used various U.S. passport holders such as
Wadih El Hage, a 40-year-old naturalized American citizen from Lebanon
who was convicted earlier this year for the 1998 embassy bombings in
Kenya and Tanzania.
FBI Special Agent Robert Miranda testified in 2001 at the trial of
Wadih El Hage and others for their roles in the bombings of the United
States embassies in Kenya and Tanzania regarding an interview he
conducted with El-Hage on August 20, 1998:
Q: Did he indicate to you why it was that he was asked to work
for Usama Bin Laden?
Miranda: Yes. He said that because he had an American passport,
Usama Bin Laden wanted him to work for him because he could
travel more freely and buy things for Bin Laden.\6\
\6\ United States v. Usama Bin Laden et al. trial transcript, March
20, 2001.
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One of Wadih El-Hage's attorneys, Sam Schmidt, emphasized this
point even further at the same trial by stating:
The evidence will show that Wadih El Hage was hired by Bin
Laden to work in the Sudan, not only because he was well-
educated, a hard worker, honest, responsible and a devout
Muslim, but, yes, he was an American free to travel throughout
the world on American passport.\7\
\7\ United States v. Usama Bin Laden et al., trial transcrit,
February 20, 2001.
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Wadih El-Hage served as Osama Bin Laden's personal secretary in the
early 1990's. In 1994, Mr. El-Hage moved to Kenya to set up businesses
for Bin Laden to be used as terrorist fronts. Mr. Hage's business card
shows him as a director of Anhar Trading, a company with addresses in
Hamburg, Germany, and Arlington, Texas.\8\
---------------------------------------------------------------------------
\8\ A copy of this business card is included as Appendix ``A''.
---------------------------------------------------------------------------
U.S. passport holders Tarik Hamdi and Ziyad Khaleel illustrate
another example of Al-Qaeda's use of American citizens. Hamdi and
Khaleel delivered a satellite telephone and battery pack to Osama Bin
Laden in Afghanistan in May 1998. Using this phone, Bin Laden conferred
with followers across the globe and, according to prosecutors, ordered
the bombing of the two American embassies in East Africa. Hamdi, a
resident of Herndon, Virginia, traveled to Afghanistan with an ABC News
team in order to coordinate an interview with Bin Laden. The phone
itself was purchased by Khaleel.\9\
---------------------------------------------------------------------------
\9\ See Appendix ``B'' for documentation of this fact.
---------------------------------------------------------------------------
In the same trial as mentioned above, an employee of O'Gara
Satellite Networks testified on the sale of an INMARSAT phone to Ziyad
Khaleel, a resident of Columbia, Missouri. This phone was allegedly for
the exclusive use of Osama Bin Laden.\10\ Khaleel purchased additional
phone accessories and asked that the equipment be mailed to: Tarik
Hamdi at 933 Park Avenue in Herndon, Virginia 20170.\11\
---------------------------------------------------------------------------
\10\ United States v. Usama Bid Laden et al., trial transcript,
March 20, 2001.
\11\ United States v. Usama Bid Laden et al., trial transcript,
March 27, 2001.
---------------------------------------------------------------------------
In the trial transcripts on March 27, Hamdi's name was mentioned
time and again regarding the satellite phone issue and a letter from
ABC World News Tonight requesting an interview with Bin Laden, dated
May 13, 1998 and addressed to Bin Laden's senior military commander,
Mohammed Atef. Apparently Hamdi was familiar with Atef, since contained
in the letter was a line referring to previous communication through
``Mr. Tarik Hamdi in Washington.'' Later in the trial it was revealed
that when Hamdi traveled to Afghanistan with the ABC News team, he sent
a fax from Pakistan to a Bin Laden aide named Khalid al-Fawwaz. The fax
read:
``Brother Khalid: Peace be upon you. We arrived safely and now
we are in the Marriott Hotel.'' \12\ Soon after, Bin Laden
received the battery pack that was so instrumental in Bin
Laden's communication with his worldwide network.
---------------------------------------------------------------------------
\12\ United States v. Usama Bid Laden et al., trial transcript, May
1, 2001.
The use of individuals with American passports was a necessity for
Bin Laden to achieve his goals. One of the privileges that an American
passport brings is the ability to travel from place to place with
little or no interference. This was obviously the case with Wadih El
Hage who, with his American passport, was able to pass in and out of
the United States and into regions in Africa, the Middle East and Asia
on instructions from Bin Laden himself. This trend should definitely
raise a warning flag for future cooperation between international
terrorists and sympathetic counterparts within the United States.
c. ali mohammed: bin laden's special operations man within the united
states
Perhaps one of the most frightening examples of the infiltration of
terrorists into the infrastructure of the United States is that of Ali
Mohammed, one of the individuals indicted for his role in the
conspiracy plot to bomb the United States embassies in Kenya and
Tanzania. Mohammed was an officer within the United States Army's
Special Forces based out of Fort Bragg, North Carolina. At the same
time, he was arranging for security for meetings between such
individuals as Osama Bin Laden and Hizbollah military chief Imad
Mughniyeh in Sudan and coordinating activities with other Bin Laden
operatives within the United States.
On November 8, 1990, FBI agents raided the New Jersey home of El
Sayyid Nosair, the Egyptian born Islamic militant, following his arrest
in the shooting of Rabbi Meir Kahane in New York City. Among the many
items found in Nosair's possession were sensitive military documents
from Fort Bragg, North Carolina. The documents, some of which were
classified Secret, contained the locations of U.S. military Special
Operations Forces exercises and units in the Middle East, military
training schedules, U.S. intelligence estimates of Soviet forces in
Afghanistan, a topographical map of Fort Bragg, U.S. Central Command
data and intelligence estimates of Soviet force projection in
Afghanistan. Appended throughout the documents were Arabic markings and
notations believed to be that of Ali Mohammed. Some documents were
marked ``Top Secret for Training otherwise unclassified''. Other
documents were marked ``sensitive.''
The military documents had been given to Nosair by Ali Mohammed, an
Egyptian born Islamic fundamentalist who had come to live in the United
States in 1985. He had been in the United States earlier that decade,
having graduated as a captain from a Special Forces Officers School at
Fort Bragg in 1981 in a program for visiting military officials from
foreign countries. He joined the U.S. military in 1986 and received a
security clearance for level ``secret.'' He was assigned as a sergeant
with the U.S. Army Special Operations at Fort Bragg, North Carolina. He
also served unofficially as an assistant instructor at the JFK Special
Operations Warfare School at Fort Bragg where he participated in
teaching a class on the Middle East and Islamic fundamentalist
perceptions of the United States.
Ali Mohammed became active in the war against the Soviets in
Afghanistan and soon connected with Islamic militants in New Jersey who
had been training and supporting the jihad. Mohammed was introduced to
El Sayyid Nosair by Khalid Ibrahim, an Egyptian born Islamic
fundamentalist in New Jersey. Ibrahim had become active in the Office
of Services of the Mujihadeen, known Al Kifah, the group that recruited
volunteers and funds for the jihad in Afghanistan. Al Kifah,
headquartered in Peshawar, Pakistan, maintained scores of offices
world-wide, including three dozen in the United States, with Al Kifah's
primary American offices located in Brooklyn, Jersey City and Tucson,
Arizona. According to the current indictment against Bin Laden and
others for their role in the bombing of the United States embassies in
Kenya and Tanzania in August 1998, the Office of Services was
transformed into the terrorist organization of Osama Bin Laden, known
as Al-Qaeda.
According to transcripts of the World Trade Center bombing trials,
Ali Mohammed began giving training sessions in New Jersey in guerilla
warfare in 1989 to Islamic militants that included, among others, El
Sayyid Nosair, Mahmud Abuhalima (later convicted in the World Trade
Center bombing conspiracy) and Khalid Ibrahim. Other training sessions
took place in Connecticut where Islamic militants trained on weekends.
A FBI report, based on Connecticut State Police intelligence,
summarized the activities of the training sessions using semi-automatic
weapons.\13\
---------------------------------------------------------------------------
\13\ The FBI reports were collected in connection with the
investigation of El Sayyid Nosair for the assassination of Rabbi Meir
Kahane in New York City on November 5, 1990.
---------------------------------------------------------------------------
According to military records, Ali Mohammed left the military in
November 1989 and moved to Santa Clara, California. Law enforcement
officials say he traveled to Afghanistan and Pakistan where he
befriended Osama Bin Laden and other top militants in the Islamic
fundamentalist movements who had sought sanctuary in Peshawar. From his
base in Santa Clara, Mohammed soon emerged as a top aide to Osama Bin
Laden. Federal officials say that Mohammed traveled regularly to and
from Pakistan and Afghanistan, having helped oversee Bin Laden's
terrorist bases in Khost and other terrorist camps in Afghanistan. In
1991, Mohammed was the person in charge of Bin Laden's move from
Afghanistan to the Sudan. The move was considered perilous since Bin
Laden had made so many enemies. Mohammed helped Bin Laden set up his
new home and terrorist base in Khartoum, Sudan where 2000 ``Arab
Afghans''-the name given to the Arab veterans of the Afghanistan jihad-
were headquartered in Bin Laden terrorist camps. Mohammed continued to
travel between the terrorist camps in Afghanistan, Bin Laden's base in
the Sudan and the United States. Mohammed continued to train new
Islamic recruits in the expanded holy war, or jihad, against the United
States, Israel, the Philippines, Bosnia, Egypt and Algeria.
Law enforcement records show that Mohammed's extended stays outside
the United States would range from weeks to half a year. But he would
always return to the United States, which provided him a safe base from
which to travel around the world on behalf of Bin Laden. In California,
Mohammed became involved in smuggling illegal aliens into the United
States, including suspected terrorists. Law enforcement sources say
that a favorite route for Mohammed was to smuggle illegal aliens
through Vancouver, Canada.
In a seemingly bizarre twist, while in California, Mohammed
volunteered to provide information to the FBI on smuggling operations
involving Mexicans and other aliens not connected to terrorist groups.
Within time, officials say, the relationship allowed Mohammed to divert
the FBI's attention away from looking at his real role in terrorism
into examining the information he gave them about other smuggling. This
gave Mohammed a de facto shield in effectively insulating himself from
FBI scrutiny for his ties to Bin Laden. And the relationship helped
protect Mohammed from being scrutinized by other federal agencies.
Mohammed had succeeded in creating an ingenious scheme all the while he
worked for Osama Bin Laden. Mohammed had also tried to cultivate a
relationship with the CIA, which did not succeed, although he had far
better success in playing off the FBI against the CIA in his dealings
with both agencies. Like a John Le Carre thriller, Mohammed played the
role of a triple agent and nearly got away with it.
In late 1994, Mohammed was called by the FBI who wanted to speak
with him about the trial in the World Trade Center conspiracy case. As
Mohammed stated in his plea of guilty before Judge Leonard B. Sand of
the United States District Court for the Southern District of New York
on October 20, 2000, ``I flew back to the United States, spoke to the
FBI, but didn't disclose everything I knew.'' \14\ In other words,
Mohammed was continuing to manipulate the American authorities even
when he was called to testify regarding the acts of terrorists about
whom he possessed information.
---------------------------------------------------------------------------
\14\ Excerpts of Mohammed's October 20, 2000 plea are attached as
Appendix ``C''.
---------------------------------------------------------------------------
Federal law enforcement officials say that Mohammed's role and
association with the Islamic militants surfaced in connection with the
World Trade Center bombing trials in 1994 and 1995. He was named on a
list of some 118 potential unindicted co-conspirators in the World
Trade Center bombing conspiracy released by federal prosecutors. Even
so, Mohammed's connections with Bin Laden were so solid that, when he
obtained a copy of this list, he sent it to Wadih El Hage, Bin Laden's
personal assistant, in Kenya ``expecting that it would be forwarded to
bin Laden [sic] in Khartoum.'' \15\
---------------------------------------------------------------------------
\15\ See Appendix ``C''.
---------------------------------------------------------------------------
In 1996, according to intelligence reports, Mohammed helped move
Bin Laden back from the Sudan, which wanted to maintain an official
arm's length relationship (yet keeping its close connections secret),
to Afghanistan. Mohammed continued working for Bin Laden in 1997 and
1998, maintaining his role as one of Bin Laden's top lieutenants.
On October 20, 2000, Mohammed rendered a guilty plea to all charges
filed against him with regard to his role in the conspiracy to bomb the
United States embassies in Kenya and Tanzania in 1998. In his
admission, Mohammed admitted his involvement with both the Al-Qaeda
organization and the Egyptian Islamic Jihad organization. He admitted
that he had been involved in conducting military and explosives
training for Al-Qaeda in Afghanistan; that he had conducted
surveillance of various American, British, French and Israeli targets
in Nairobi; that trained Bin Laden's personal bodyguards to prevent any
assassination attempts; and that he arranged security for a meeting
between Bin Laden and Hizbollah military leader Imad Mughniyeh.\16\ Ali
Mohammed's role in terrorism and his ability to work within the United
States outside the scope of investigation provides proof of the
vulnerability of the United States to the work of terrorists within the
United States.
---------------------------------------------------------------------------
\16\ See Appendix ``C'' for further excerpts of Mohammed's plea.
---------------------------------------------------------------------------
d. ihab ali: flight school
Another instance of an abuse of American citizenship is Ihab
Mohammed Ali, currently incacerated for lying to a grand jury about his
role in the Al-Qaeda network and the embassy bombings in Kenya and
Tanzania. Ali and his family moved to the United States in the 1970s,
immigrating from Egypt. There he obtained a job as a cab driver for
City Cab Co in Orlando, Florida, before heading off for Pakistan in
1989.\17\ While there, Ali worked for the Muslim World League, an
organization reportedly backed by Osama bin Laden.\18\ After being
taken into custody in May 1999 due to his alleged connections to the
embassy bombings in Africa, Ali refused to aid authorities and lied to
the grand jury.
---------------------------------------------------------------------------
\17\ Pedro Ruz Gutierrez. ``Case Builds Against a Cabbie.'' The
Orlando Sentinel. July 19, 1999.
\18\ Ibid.
---------------------------------------------------------------------------
According to his indictment, Ali took flight lessons in Oklahoma in
1993 like some of the September 11 hijackers.\19\ Ali's learned to fly
at the Airman Flight School in Norman, Oklahoma. Two hijackers,
Mohammed Atta and Marwan al-Shehhi, visited the Airman Flight School
before deciding to learn to fly at a flight school in Florida. Ihab
Ali's exact role in the Al-Qaeda network remains unclear, but his
indictment intimates that Ali was believed to have knowledge of both
Wadih El Hage and Ali Mohammed and their actions.\20\
---------------------------------------------------------------------------
\19\ United States District Court for the SOurthern District of NY,
Indictment of Ihab Mohamed Ali., p.5.
\20\ Ibid.
---------------------------------------------------------------------------
e. ramadan abdullah shallah: the case of the university of south
florida
On March 11, 1992, the University of South Florida (USF) and the
World & Islam Studies Enterprise (WISE) entered into a formal agreement
regarding cooperation between the two entities in the fields of
research and graduate student enrichment.\21\ WISE was a seemingly
benign organization which was a self-described think-tank on Middle
Eastern and Islamic issues. The individual who signed the agreement on
behalf of WISE was Ramadan Abdullah Shallah. In October 1995, following
the assassination of then-leader Fathi Shikaki, Shallah became the
Secretary-General of the Palestinian Islamic Jihad (PIJ), an
international terrorist organization based in Damascus, Syria, that was
engaged in a jihad against the State of Israel through a campaign of
suicide bombings and other deadly attacks carried out against Israeli
civilians and soldiers alike.
---------------------------------------------------------------------------
\21\ A copy of the agreement is attached as Appendix ``D''.
---------------------------------------------------------------------------
The role of WISE in nurturing the future leadership of PIJ was that
of providing a legitimate front for PIJ activities within the United
States through agreements such as the one between WISE and USF which
leant WISE the legitimacy necessary to overcome scrutiny for its
activities. WISE, founded in 1990, was a PIJ brain-child from its
formulation. The founders of WISE all emanated from the Middle East
with a definite agenda dictated by PIJ.
The Director of Administration of WISE was Ramadan Abdullah
Shallah. As mentioned earlier, Shallah currently serves as the
Secretary-General of PIJ in Damascus, Syria. The Director of Research
of WISE was Bashir Musa Nafi. Nafi was deported from the United States
in 1996 based on visa violations. On his INS Order to Show Cause, which
constitutes the INS equivalent to an indictment against an alien within
the United States, a pseudonym is listed for Nafi of Ahmed Sadiq. This
alias is important to his connections to terrorism. To those in the
Palestinian Islamic Jihad, he was better known by this name. Under this
pseudonym, Nafi wrote scores of articles in journals referred to by
Palestinian Islamic Jihad head Fathi Shikaki as publications of the
movement. Included among these are Al-Mukhtar Al-Islami, which is
published in Cairo, and Al-Taliah Al-Islamiah, which was published in
London (Nafi being on the Editorial Boards of both publications during
the time that he wrote for them).
A master's thesis presented by Abdul Aziz Zamel at USF on April 17,
1991 referred to Nafi as an ideological head of the Palestinian Islamic
Jihad along with Fathi Shikaki. Based on interviews with an anonymous
individual identified by Zamel as a ``founder'' of the Palestinian
Islamic Jihad, Zamel wrote, on page 192 of his thesis, that Nafi had
actually ``published and edited a journal, al-Taliah al-Islamiah (The
Islamic Vanguard) [sic] specifically for the [Palestinian Islamic
Jihad], which was sent to the occupied territories for reproduction, in
the same shape and form, and distribution.'' Thomas Mayer, a researcher
who wrote an article in Emmanuel Sivan and Menachem Friedman's 1990
book entitled Religious Radicalism and Politics in the Middle East,
stated that Fathi Shikaki regarded Bashir Nafi as ``an ideological
friend.'' Mayer also discussed the cooperation between Nafi and Fathi
Shikaki in distributing Al-Taliah Al-Islamiah throughout the West Bank
and Gaza Strip.\22\ These references suggest that Nafi was not merely a
member of the movement, but a spokesperson with close ties to Shikaki.
---------------------------------------------------------------------------
\22\ Emmanuel Sivan and Menachem Friedman, Religious Radicalism and
Politics in the Middle East, SUNY Press, 1990.
---------------------------------------------------------------------------
Another of the founding members of WISE was Khalil Shikaki, the
brother of then-Secretary-General of PIJ, Fathi Shikaki. Documents
seized by federal agents pursuant to a search warrant at the WISE
office in November 1995 show that Shikaki, after his departure from
WISE in 1992, contacted his brother by means of Ramadan Shallah who was
working at WISE and teaching at USF at the time. Evidence released in
the federal investigation against WISE and ICP included a letter and a
fax between Abdullah and Khalil Shikaki showing that Abdullah served as
a go-between for the brothers.\23\
---------------------------------------------------------------------------
\23\ This evidence was released to subsequent to the first
immigration bond determination hearings for Mazen Al-Najjar in Orlando,
Florida in 1996 and 1997.
---------------------------------------------------------------------------
By utilizing the agreement between WISE and USF \24\ as a means of
facilitating legitimacy for their activities, the individuals
associated with WISE were able to coordinate PIJ activities within the
United States free from government scrutiny. The government became
actively involved only after one member of the inner circle of this
organization, Ramadan Shallah, emerged as the Secretary-General of PIJ
in Damascus, Syria.\25\
---------------------------------------------------------------------------
\24\ See Appendix ``D''.
\25\ Additional information on the Palestinian Islamic Jihad
Network in the United States is attached as Appendix ``E''.
---------------------------------------------------------------------------
f. musa abu marzook and uasr:
The United Association for Studies and Research (UASR), an Islamic
think tank now based in Springfield, Virginia, was founded in 1989 in
Chicago, Illinois by a number of prominent Islamic radials living in
the US, primary among whom was Musa Abu Marzook.
Musa Abu Marzook, a.k.a. Abu Omar, was the head of the Hamas
Political Bureau since 1988, while he was resident in the United
States.\26\ Hamas (Harakat Al-Muqawama Al-Islamia fi Filastin--The
Islamic Resistance Movement in Palestine) is one of the most militant
Islamic groups in the world and is included in the United States
Department of State's list of Foreign Terrorist Organizations that are
outlawed pursuant to the Anti-Terrorism and Effective Death Penalty Act
of 1996. Hamas has claimed responsibility for numerous suicide bombing
attacks within Israel resulting in the deaths of scores of innocent
Israelis.
---------------------------------------------------------------------------
\26\ United States District Court for the Southern District of NY,
In the Matter of the Extradition of Mousa Mohammed Abu Marzook,
Affidavit of Kevin Thomas Duffy, DJ, 95 Civ. 9799 (KTD) May 8, 1996. p.
1.
---------------------------------------------------------------------------
On July 27, 1995, Marzook was arrested at New York's John F.
Kennedy Airport because ``he played an important role in supervising
the activities of the military wing to Hamas [the wing responsible for
the terrorist attacks] and in appointing individuals to important
leadership roles in the military wing.'' \27\ In the United States, Abu
Marzook was ``responsible for the Muslim Brothers organization in the
U.S. and resigned from this job in order to devote his time to
activities dedicated to Palestine'' following the foundation of the
Hamas. Marzook, who was born in the Gaza Strip, was a close associate
of Sheikh Ahmad Yassin, the Islamic cleric who founded Hamas as an
organization distinct from its parent group Muslim Brotherhood.\28\
---------------------------------------------------------------------------
\27\ United States District Court for the Southern District of NY,
In the Matter of the Extradition of Mousa Mohammed Abu Marzook, Sealed
Complaint by Shirah Neiman.
\28\ The Muslim Brotherhood is the international Sunni Islamic
extremist movement that was founded in Egypt in 1928. It is also the
ideological ancestor of today's most violent Islamic extremist
movements.
---------------------------------------------------------------------------
Marzook first came to the United States in the late 1970s, although
immigration records show that he formally began residing in the United
States starting in 1981.\29\ Marzook and his family lived in a number
of locations during their 14 years in the United States, including
Colorado, Louisiana and Virginia. He and his family moved to Falls
Church, Virginia in 1991.Between 1993 and 1995, Marzook resided
principally in Jordan, which deported him in June 1995 for his
involvement and senior position in Hamas. In July 1995, after making
trips to Iran and Syria, Abu Marzook attempted to reenter the United
States at which time he was arrested by customs and INS officials at
the request of the Israeli Government which sought to prosecute Abu
Marzook for numerous crimes in connection with his leadership role in
Hamas. In October 1995, acting at the request of the Israeli
Government, the United States initiated extradition proceedings against
Abu Marzook, based on pending Israeli criminal charges that included
murder, attempted murder and conspiracy stemming from Hamas-sponsored
terrorist acts.
---------------------------------------------------------------------------
\29\ At the time of his arrest, Abu Marzook was a permanent
resident alien of the United States. In 1990, he and his family
received their Green Cards in an INS lottery that offered ``permanent
legal residency'' to potential immigrants. In affidavits filed by
Deputy United States Attorney Shirah Neiman, the role of Abu Marzook in
Hamas activities was discussed as follows:
---------------------------------------------------------------------------
In his role as head of political bureau, Abu Marzook financed
certain activities of Hamas, including terrorist activities against
soldiers and civilians in the Territories and Israel. In addition, he
played an important role in supervising the activities of the military
wing to Hamas (the wing responsible for the terrorist attacks) and in
appointing individuals to important leadership roles in the military
wing. Throughout most of the relevant period, he resided in the United
States.\30\
---------------------------------------------------------------------------
\30\ United States District Court for the Southern District of NY,
In the Matter of the Extradition of Mousa Mohammed Abu Marzook, Sealed
Complaint by Shirah Neiman to the US Magistrate Judge, p.2.
---------------------------------------------------------------------------
The arrest of Muhammad Salah, Mohamad Jarad and Nasser Hidmi by the
Israeli authorities marked an important turning point into the
investigation of Hamas. What was revealed as a result of interrogations
and confessions of these individuals (Salah and Jarad were both
residents of Chicago, Illinois, and Hidmi was a student at Kansas State
University in Manhattan, Kansas) was the importance of the United
States as an operational base for Hamas. Under the leadership of Musa
Abu Marzook, the Hamas headquarters in the United States was able to
operate virtually unimpeded from the intense scrutiny of authorities.
On January 25, 1993, Salah and Jarad, two high ranking Hamas
operatives with United States citizenship, were arrested by the Israeli
General Security Services (GSS) with the aid of the Israeli Defense
Forces (IDF). The Israeli authorities obtained the most significant
information against Musa Abu Marzook from Salah, a.k.a ``Abu Ahmad.''
In these statements, Salah exposed the pivotal role of Musa Abu Marzook
in the Hamas organization. Musa Abu Marzook directed the Hamas
organization's activities, the allocation of its resources and the
transfer of funds: ``Abu Marzook specifically directed funds towards
Hamas' 'military' (i.e. terror) activities, encouraged acts of terror,
and played an important role in overseeing certain `military' aspects
of Hamas' operations and in making `military.' '' \31\
---------------------------------------------------------------------------
\31\ Ibid. p. 5
---------------------------------------------------------------------------
On October 10, 1994, Abu Marzook appeared in a television interview
broadcast from the ``Al Manar'' television station in Lebanon. This was
only one day after the October 9, 1994 shootings in which two Hamas
terrorists killed two and wounded eighteen persons in a suicide attack
in a pedestrian mall in downtown Jerusalem. In the interview, Marzook
stated as follows:
Death is the goal to every Muslim and every fighter wants to die on
Palestinian land. This is not the first time that the Izz Al-Din Al-
Qassem heroes carry out suicide and terrorism actions. . .The peace
process, as described by Arafat more than once, is a failure. By these
actions, we do not strive to foil the talks and the negotiations. We
are doing them for a much higher aim and they are steps on the way for
a full restitution of the rights of the Palestinian people.
g. use of money laundering: the ``charlotte hizbollah cell''
On July 21, 2000, agents from the Federal Bureau of Investigation
(FBI) in Charlotte, North Carolina, arrested eleven individuals on
charges of smuggling contraband cigarettes to Michigan from North
Carolina and money-laundering. In a superseding indictment filed in the
United States District Court for the Eastern District of North Carolina
on March 28, 2001, four individuals were charged with providing
material support or resources to the Hizbollah terrorist organization.
The individuals were charged with providing ``currency, financial
services, training, false documentation and identification,
communications equipment, explosives, and other physical assets to
Hizbollah, in order to facilitate its violent attacks.''\32\
---------------------------------------------------------------------------
\32\ United States v. Mohamad Youssef Hammoud et al., No. 00 CR 147
(W.D. N.C. filed July 20, 2000, amended March 28, 2001) Superseding
Bill of Indictment, para. 3.
---------------------------------------------------------------------------
Another similar case was filed in Michigan against Fawzi Mustapha
Assi on August 4, 1998. The charges against Assi, stated in both the
Indictment and the Criminal Complaint, included allegations that he did
``(k)nowingly provide and attempt to provide material support or
resources, to wit, night vision goggles, global positioning satellite
modules and a thermal imaging camera to a designated foreign terrorist
organization.'' The foreign terrorist organization to whom Assi was
charged with providing these materials was the Hizbollah terrorist
organization. Unfortunately, prior to the filing of the indictment,
Assi disappeared,\33\ and allegedly reappeared in Lebanon.\34\
---------------------------------------------------------------------------
\33\ Kay M. Siblani, ``Man charged with exporting weapons to
Hizbollah disappears,'' Arab American. News, August 7, 1998: David
Josar, ``Suspect in Hezbollah case skips hearings,'' Detroit News, July
29, 1998.
\34\ Kevin Lynch, ``Ford engineer seen in Lebanon: Newsletter
publisher says people have seen man suspected of supporting
terrorists,'' Detroit News, September 4, 1998.
---------------------------------------------------------------------------
These two examples show how foreign terrorist organizations may
develop relationships with individuals who are already resident within
the United States in order to provide them support. In these cases,
however, the support was not merely financial but also tactical. Both
in Charlotte and in Detroit, the items involved were highly
sophisticated items to be used directly in terrorist operations.
In each of the above examples, different approaches by the United
States government and its many agencies would have served the purpose
of shutting down the potential for providing funds, recruitment or a
base of operations for terrorists on American soil.
Conclusion:
On September 11, Osama Bin Laden proved that terrorists were able
to hide under our radar screen for years without being detected by the
relevant agencies or even by what is known as the fourth branch of
government, the media. The horror of September 11 was achieved through
a variety of means, not all tethered to the specific operational
details of the actual plot. Our nation's defenses and our awareness of
the threats surrounding us were numbed through false conduits, fake
companies, religious charities, exploitation of our free speech and
religious freedoms and abetted by problems in the visa system and
loopholes in the terrorist watch list. The bottom line is that if this
is not to be repeated, we need to institute new safeguards, methods of
detecting false cover companies, academic institutes, and religious
charities, monitor those who are here illegally and who are connected
to known terrorist groups and demand that our government do a much
better of job of scrutinizing those who violate American law by
exploiting the very freedoms that make our country great.
[GRAPHIC] [TIFF OMITTED] T1998.008
Appendix B
Documents provided by Ali Mohammed to Al-Qaeda listing the
positions of United States Special Operations Forces residing in the
Middle East and the United States. The documents are accompanied by
Mohammed's translation into Arabic directly on the pages.
[GRAPHIC] [TIFF OMITTED] T1998.009
[GRAPHIC] [TIFF OMITTED] T1998.010
[GRAPHIC] [TIFF OMITTED] T1998.011
[GRAPHIC] [TIFF OMITTED] T1998.012
[GRAPHIC] [TIFF OMITTED] T1998.013
[GRAPHIC] [TIFF OMITTED] T1998.014
[GRAPHIC] [TIFF OMITTED] T1998.015
[GRAPHIC] [TIFF OMITTED] T1998.016
[GRAPHIC] [TIFF OMITTED] T1998.017
Senator Feingold. I noticed in the tape, one of the
gentlemen was a Mr. Revell, who was one of your experts. I want
to place in the record, without objection, an article by Jim
McGee of the Washington Post entitled, ``Ex-FBI Officials
Criticize Tactics on Terrorism,'' in which Mr. Revell is quoted
as follows. With regard to the detention, or the proposal to
interview 5,000 people by the Justice Department, he said that
while that practice may have a short-term deterrent effect,
that the tactic is problematic. His actual quote is, ``One, it
is not effective, and two, it really guts the values of our
society, which you cannot allow the terrorists to do.''
So this is one of the individuals that was quoted on this
tape making that statement about one of the things that the
Justice Department is doing. Without objection, that will go in
the record.
At this point, I will turn to our last witness, Nadine
Strossen. She is the President of the American Civil Liberties
Union. She is also a professor of constitutional law at New
York Law School. The ACLU has been at the forefront of
protecting civil liberties for decades and their work has taken
on even greater importance since September 11. I believe the
ACLU has done our country a great service by reminding us that
we must defend our cherished freedoms even as we face enormous
national security challenges at home and abroad. I thank you
for your leadership and for joining us today. You may proceed.
STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL
LIBERTIES UNION, NEW YORK, NEW YORK
Ms. Strossen. Thank you so much, Chairman Feingold, Senator
Sessions, other members of the Committee. The ACLU is, indeed,
concerned with our freedom, but we are, of course, also
concerned with safety, and the logo on our website since
September 11 has been ``Safe and Free.''
Along with Oliver Buck Revell, whom I too noticed--I had
read his critical comments and I was surprised to see him on
the film--these law enforcement officials are saying the same
thing, or perhaps it is the obverse, that the measures that we
are criticizing, including the massive secretive detentions and
the round-up of 5,000 people, mostly on the basis of national
origin, are the worst of both worlds. They are not going to be
effective, as Mr. Revell himself said, and they certainly are
going to make us less free.
As you pointed out, Senator Feingold, the critiques have
been coming from local law enforcement officials around the
country, interestingly enough, not only from California and
Oregon, but also from Texas, from the Middle West, and they
have been coming from present and former FBI officials.
Now, in my limited time, I am going to try to focus on a
few points that really have not been covered so thoroughly and
many others are covered in my written testimony.
First of all, we have heard assertions from the government,
including this morning, that these massive so-called interviews
of 5,000 young men from certain countries are supposedly
voluntary. How voluntary is it, though? I have the letter that
is being sent to these individuals and here is the exact
pertinent language. It reads, ``While this interview is
voluntary, it is crucial that the investigation be broad-based
and thorough and the interview is important to achieve that
goal. We need to hear from you as soon as possible, by December
4,'' interestingly enough, today.
I think it is fair to say that most people who receive that
letter would not see this as a voluntary request for an
interview. It is particularly true when we are talking about
these individuals who are foreigners, new to this country, and
in particular, as we keep hearing reports and government
acknowledgement that hundreds of people are already in jail for
minor immigration violations, no doubt these interviews are
going to feel much more coercive than voluntary.
In addition, the fact is that all of these people come from
countries--many of them come from countries--with repressive
regimes. They are not told that they have a right to refuse to
answer certain questions. The Justice Department's guidelines
expressly say that they should not be told of their Miranda
right. They are not affirmatively told of their right to be
represented by counsel. So, in fact, for all practical
purposes, there is going to be a very coercive atmosphere.
Also on the point of coercion, we heard this morning again
from the Justice Department that there is further encouragement
to come forward voluntarily through the new Responsible
Cooperators' Program. The problem with that program, though, is
that it is very vague in terms of the assurances that are
supposedly going to be made to these interviewees, and it is
completely inconsistent with the actual written guidelines that
the Justice Department has issued governing the immigration
consequences of the interviews.
The written, formal Justice Department guidelines actually
expressly instruct those law enforcement officials who are
conducting the interviews--I think interrogations is a more
accurate term--to inquire into immigration status and if there
is any reason to suspect that the person is not in compliance,
to immediately contact local INS officials with the express
purpose of determining whether detention would be appropriate.
So if, in fact, the Attorney General is going to reverse
that policy and offer some kind of waiver of detention or
deportation, then it certainly should be done through official,
formal guidelines that are legally enforceable. Otherwise, this
becomes much more like a sting operation, making it even more
coercive and less voluntary than it was in the first place.
I would like to make one other point, and that is with
respect to the various assertions we heard this morning from
the Justice Department, the Assistant Attorney General, about
the various constitutional rights that are being respected: we
are just getting assertions to that effect. The major reason
why we have been asking for information repeatedly, together
with other citizens' organizations, together with members of
Congress, is precisely so that we can verify that the
detainees' legal rights have been complied with. Unfortunately,
along with other people who have testified on this panel, we
are getting information from detainees which is inconsistent
with the assertions that the Justice Department has made.
Specifically, on the Department's point that people are
being charged within 48 hours, we are aware of three contrary
cases in New Jersey, because we had been considering
representing these individuals. They have all been detained for
far more than 48 hours--in one case, up to 3 weeks. So we would
welcome information from the Justice Department that would
confirm their assertions.
And my final point, as my time is expiring, is on the point
of secrecy. We heard a new rationale this morning from the
Assistant Attorney General that we had never heard before; that
is, that the reason for not giving the names of the Immigration
detainees is because they are under seal.
One week ago today, Chairman Feingold, you asked, and I
think other members of the Committee also asked Michael
Chertoff of the Justice Department specifically whether there
is any legal reason for not releasing those names, and he
answered that there was no legal reason.
[The prepared statement of Ms. Strossen follows:]
Statement of Nadine Strossen, President, American Civil Liberties Union
Chairman Feingold and other members of the Committee, I am pleased
to testify before you today at this oversight hearing on the conduct of
the Department of Justice in response to the September 11 attacks on
the World Trade Center and the Pentagon. My name is Nadine Strossen and
I am the President of the American Civil Liberties Union, a non-
partisan, non-profit organization, consisting of nearly 300,000
members, dedicated to protecting the principles of freedom and equality
reflected in our Constitution and civil rights laws. I am also a
Professor of Law at New York Law School, teaching and writing about
Constitutional Law.
Before I discuss the ACLU's concerns about the infringements on
constitutional rights and civil liberties in connection with the
Department of Justice's detention and questioning of thousands of
individuals in the wake of the horrifying September 11 attacks, I want
to note how close to home those attacks were, and how I continue to be
directly affected by their ongoing impact. Both the ACLU's national
headquarters and New York Law School are located within blocks of
``Ground Zero.'' By some stroke of relative good fortune, everyone who
worked at either location was spared direct physical injury or death.
Nonetheless, the psychic and health traumas are deep and enduring, and
both workplaces were severely damaged.
The ACLU office was closed for a week and it took several weeks
before we had full use of telephone service and computers. New York Law
School, which suffered more physical damage, was closed for several
weeks, and in fact did not have long distance telephone service
restored until just a couple weeks ago. Many students--including many
who had just arrived in New York from other parts of the country, for
the beginning of their law school careers--are still suffering severely
from the psychic aftershocks. A number dropped out and moved away
altogether, and others are taking some time off before returning to law
school. One who never came back after witnessing the horrifying attacks
and ensuing chaos, choosing to move to another part of the country, was
one of my two full-time staff members. The air quality is still so bad
that it is often physically unpleasant, if not adverse to health;
colleagues with asthma or other respiratory conditions can't remain at
the school for more than short periods.
Moreover, like most New Yorkers, I lost a friend and colleague in
the attack. John Perry, who was both a police officer and a lawyer, had
long been active in the ACLU's New York affiliate. He and I worked
together on a number of projects, including a series of public
television programs about constitutional law/civil liberties issues. So
I come before the Committee today with personal losses and grief
resulting from the tragedy (fully realizing how much greater and more
direct were the losses suffered by so many others), and a strong desire
to see that those who helped perpetrate this atrocious crime are
brought to justice.
The ACLU recognizes that this investigation is an enormous
undertaking and we are grateful to the thousands of people at the
Department of Justice who are working hard, with the best intentions,
to solve this atrocious crime and protect us from future attacks.
However, the Department of Justice has assumed broad new police powers
and used investigative tactics that unnecessarily violate rights with
no showing that these measures increase the likelihood of capturing or
deterring terrorists. Indeed, former FBI agents have publicly
criticized the government's detention and questioning of thousands of
individuals based on their immigration status and their national origin
specifically from a law enforcement perspective. They maintain that
these dragnet tactics are ineffective at best, counterproductive at
worst, in terms of the all-important goals of punishing and preventing
terrorism.\1\
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\1\ Washington Post, October 27, 2001.
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My written testimony will focus on three aspects of the sweeping
detentions and questioning, which raise particular concerns about
infringements of constitutional rights and civil liberties: (1) the DOJ
regulation authorizing it to record confidential, privileged attorney-
client communications between individuals who are being detained and
their attorneys; (2) the government's refusal to disclose basic
information about the people who have been detained, and (3) the
questioning of 5,000 young men who lawfully entered the U.S. on non-
immigrant visas, based on their country of national origin. We believe
that these measures unnecessarily violate civil liberties and rights
without sufficient justification in terms of advancing national
security. These measures will not make us more safe, but they will make
us less free.
Eavesdropping on Protected Attorney Client Conversations
Without observing the normal notice and comment period required
under the Administrative Procedures Act, Attorney General Ashcroft
announced, under ``emergency authority,'' a regulation that permits the
Department of Justice to eavesdrop on confidential attorney client
conversations in any case in which the Attorney General finds that
there is ``reasonable suspicion'' to believe that a particular federal
prisoner ``may'' use communications with attorneys or their agents ``to
further or facilitate acts of terrorism.'' The regulation requires that
the Director of the Bureau of Prisons (BOP) ``shall. . .provide
appropriate procedures for the monitoring or review of communications
between that inmate and attorneys or attorneys' agents who are
traditionally covered by the attorney-client privilege.\2\
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\2\ 66 Fed. Reg. 55062 (October 31, 2001); 28 C.F.R. sec. 501.3(d)
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In short, the Justice Department, unilaterally, without judicial
oversight, and with no meaningful standards, is to decide when to
eavesdrop on the confidential attorney-client conversations of a person
whom the Justice Department itself may be seeking to prosecute. This
regulation applies not only to convicted prisoners in the custody of
the BOP, but to all persons in the custody of the Department of
Justice, including pretrial detainees who have not yet been convicted
of any crime and are presumed innocent, as well as material witnesses
and individuals who are being held on suspected immigration violations
and who are not accused of any crime.
This regulation is particularly disturbing because it is
unnecessary. The Department of Justice already has legal authority to
record attorney-client conversations by going before a judge and
obtaining a warrant based on probable cause that the attorney is
facilitating a crime \3\. Indeed, the Supreme Court has even approved
searches of an attorney's law office, provided a warrant has first been
obtained from a neutral and detached magistrate.\4\ Similarly, if
prison officials have reason to believe that a particular prisoner is
using the mail to violate the law or threaten security, they may obtain
a search warrant to read and open the mail.\5\
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\3\ United States v. Harrelson, 754 F.2d 1153, 1168-69
(5th Cir. 1985).
\4\ Andresen v. Maryland, 427 U.S. 463, 480 n. 4, 96 S. Ct. 2737,
2748 n. 4, 49 L.Ed.2d 627 (1976). (approving search of law office
pursuant to a warrant based on probable cause)
\5\ Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir.
1978).
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A second source of longstanding legal authority to record
conversations between attorney and client, when justified by crime
control concerns, is the ``crime-fraud exception'' to the attorney-
client privilege. Attorney-client communications lose their privileged
status if the government can establish that the communications were
used for the purpose of facilitating a crime or perpetrating a fraud.
However, it is the judge, not the Justice Department, who determines
which communications fall under the crime-fraud exemption. The Supreme
Court has made clear that the determination whether an attorney-client
communication falls within the crime-fraud exception is to be made by
courts in an in camera hearing after the government provides the court
with evidence substantiating a good faith basis to believe that the
exception applies.\6\
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\6\ United States v. Zolin 491 U.S. 554, 109 S. Ct. 2619, 2631, 105
L.Ed.2d 469 (1989).
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The Justice Department has not articulated a single reason why
these two provisions in current law are insufficient to ensure that
attorneys are not assisting their clients in committing crime. Indeed,
during questioning before the Senate Judiciary Committee on November
27, 2001, Assistant Attorney General Michael Chertoff could not answer
Senator Kennedy's question as to why the new regulation was necessary.
Yet in spite of any justification for doing so, the Department of
Justice has made itself the arbiter of when conversations should be
monitored, taking away the authority from a neutral judge. This
regulation is an unprecedented frontal assault on the attorney-client
privilege and on the right to counsel and the right of access to the
courts guaranteed by the Constitution.
The Supreme Court has recognized the attorney-client privilege as
the oldest of the privileges for confidential communications known to
the common law.\7\ Its purpose is to encourage full and frank
communication between attorneys and their clients, recognizing that
sound legal advice or advocacy depends upon the lawyer being fully
informed by the client. The Court stated that the attorney client
privilege ``is founded upon the necessity, in the interest and
administration of justice, of the aid of persons having knowledge of
the law and skilled in its practice, which assistance can only be
safely and readily availed of when free from the consequences or the
apprehension of disclosure.'' \8\ Indeed, the privilege is so well
established and considered such a compelling societal interest, that
the Supreme Court has held that the privilege survives even after the
client's death.\9\
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\7\ Upjohn Co. v. United States, 449 U.S. 3838, 389, 101 S. Ct.
677, 682 L.Ed.2d 584 (1981).
\8\ Id. (quoting Hunt v. States 128 U.S. 464, 9 S. Ct. 125, 127,
L.Ed. 488 (1888).
\9\ Seidler & Berlin v. United States, 524 U.S. 379, 118 S. Ct.
2081, 2088, 141 L.Ed. 2d 379 (1998).
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Besides violating the long established attorney-client privilege,
the regulation violates the Sixth Amendment right to the assistance of
counsel. In the famous case of Gideon v. Wainwright, the Supreme Court
ruled that the Sixth Amendment guarantees a person facing criminal
charges the right to the assistance of counsel for his defense.\10\
This right is not limited to the trial itself, but includes the
assistance of counsel in the investigation and preparation of a
defense. Indeed, the Supreme Court has recognized that denying a person
access to counsel in the period prior to trial, the period most likely
to be impacted by this regulation may be more damaging than denial of
counsel during the trial itself.\11\
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\10\ Gideonv. Wainwright, 372 U.S. 335, 339-40, 83 S. Ct. 792, 794
(1963).
\11\ Maine v. Moulton, 474 U.S. 159 170, 106 S. Ct. 477, 484, 88
L.Ed. 481 (1985).
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The essential bedrock of the Sixth Amendment right to the
assistance of counsel is the ability to communicate privately with
counsel.\12\ Even the Justice Department recognizes the need for
private attorney-client communications. In a friend of the court brief,
the Justice Department wrote, ``the Sixth Amendment's assistance-of-
counsel guarantee can be meaningfully implemented only if a criminal
defendant knows that his communications with his attorney are private
and that his lawful preparations for trial are secure against intrusion
by the government, his adversary in the criminal proceeding.'' \13\
Under the regulation, the defendant and his counsel are confronted not
just by the possibility that the government is monitoring their
communications, but by the certain knowledge that it is doing so.
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\12\ United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973).
\13\ Weatheford v. Bursey 429 U.S. 545, 554 n.4, 97 S. Ct. 837, 843
n. 4, 51 L.Ed.2d 30 (1977) (quoting Brief for United States as Amicus
Curiae).
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Separate and distinct from the Sixth Amendment rights of persons
facing criminal charges, prisoners have a constitutional right of
access to the courts.\14\ This right is not limited to pretrial
detainees facing criminal charges, or those appealing criminal
convictions, but extends even to convicted prisoners who may wish to
seek a writ of habeas corpus or file an action challenging the
conditions of their confinement. Indeed, because a prisoner ordinarily
does not have the right to vote, the Supreme Court has held that the
right to file a court action might be a prisoner's remaining most
fundamental right.\15\ Regulations and practices that unjustifiably
obstruct the availability of legal representation are invalid.\16\
Courts have expressly held that the right of access is the guarantee of
an opportunity to communicate with counsel privately.\17\ Moreover,
courts have specifically held that, when the individual seeking to
confer with counsel is incarcerated, a prison must provide a facility
for confidential attorney-client conversations.\18\ Likewise, judicial
rulings have held that the Sixth Amendment right of access to the
courts includes the right to privacy in attorney-client mail.\19\
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\14\ Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52
L.Ed.2d 72 (1977).
\15\ McCarthy v. Madigan, 503 U.S. 140, 153, 112 S. Ct. 1081, 1091,
117 L.Ed.2d 291 (1992).
\16\ Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800,
1814, 40 L.Ed.2d 224 (1974).
\17\ Bach v. People of the State of Illinois, 504 F.2d 1100, 1102
(7th Cir. 1974)
\18\ Dawson v. Kendrick, 527 f. Supp. 1252, 1314 (S.D.W.Va. 1981).
\19\ Muhammad v. Pitcher 35 F.3d 1081, 1083 (6th
Cir.1994).
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The new DOJ regulation provides that the government will not retain
``properly privileged materials'' that it obtains through its
monitoring. During his appearance before the Senate Judiciary
Committee, Assistant Attorney General Chertoff suggested that the
regulation violates no rights and causes no harm because ``innocent''
conversations will not be retained or used against the client and
``guilty'' conversations are not protected anyway. However, an
individual's right to counsel will still be violated by the
government's announced monitoring program, even if the government does
not retain his privileged communications with counsel or use these
communications against him in a criminal prosecution. Indeed, an
individual's Sixth Amendment right to counsel will still be violated in
the wake of the announced monitoring program even if the government
does not actually intercept any of that individual's privileged
communications with his lawyer. As the courts have recognized, the
violation occurs as soon as the individual and his lawyer are informed
that their confidential attorney-client communications are henceforth
subject to monitoring by government agents. From that point on, all
attorney-client communications are chilled, thus thwarting the
privilege's key purpose--to encourage the full and frank disclosure and
discussion between attorney and client that is an essential
prerequisite for the lawyer's effective representation of the client.
In a recent opinion, Richard A Posner, Chief Judge of the United
States Court of Appeals for the Seventh Circuit, powerfully explained
why ``merely'' announcing a policy of government monitoring of
attorney-client communications would have a devastating impact on the
attorney-client privilege and the associated Sixth Amendment rights to
representation by counsel and access to the courts. Chief Judge
Posner's opinion described a colloquy during the oral argument in which
he had asked the government lawyer if the attorney-client privilege
would be violated in the following hypothetical situation: all
conversations between criminal defendants and their lawyers were taped,
but the tapes were never turned over to the prosecutors, and instead
were stored in the National Archives. The government lawyer took the
position that none of the defendants could complain in this situation
because none could be harmed by it, since the prosecutors would not
have access to the tapes. Judge Posner rejected that conclusion,
explaining:
The hypothetical practice that we have described would, because of
its pervasiveness and publicity, greatly undermine the freedom of
communication between defendants and their lawyers and with it the
efficacy of the right to counsel, because knowledge that a permanent
record was being made of the conversations between the defendants and
their lawyers would make the defendants reluctant to make candid
disclosures. (Totalitarian style continuous surveillance must surely be
a great inhibitor of communication.) \20\
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\20\ United States v. DiDomenico, 78 F.3d 294, 299 (7th
Cir. 1996).
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Failure of the Government to Disclose Fully Information about the
Persons it has held and incarcerated since September 11
The Department of Justice has launched what appears to be an
extensive program of preventive detention. Although certainly not on
the same scale or scope as the internment of Japanese-Americans during
World War II,\21\ this is the first large-scale detention of a group of
people based on country of origin or ancestry since that shameful
episode, for which our government formally apologized and paid
reparations.
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\21\ One significant difference is that the Japanese-Americans were
not charged with any criminal or immigration violation, but were held
solely based on their ancestry or country or origin.
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The Department admits that over 1,200 people have been detained in
connection with the September 11 attacks. Some have been incarcerated
for long periods of time, others held for only hours. Because of the
secrecy surrounding the detentions, we do not know whether most of
these people are still incarcerated or have been released.
A major safeguard against government abuses of power is being
thwarted by the Justice Department's policies: access to information.
The Department is defying the public's right to know, refusing to give
important information about the detainees. This wall of silence
undermines public confidence in the investigation and raises questions
about the fairness of the process, as well as the rights and even the
welfare and safety, of the incarcerated individuals.
According to media accounts of the detentions, only a very small
number of persons that have been arrested have any involvement or
knowledge of the attacks. Approximately 10 people, what the Washington
Post called the ``hot center'' \22\ are believed to have close ties to
the al Qaeda network or some knowledge of the hijackers. An additional
17 men and 1 woman have more distant connections to the hijackers or
connections to the people in the ``hot center.'' The rest have been
charged with unrelated technical immigration violations, minor criminal
charges (usually under state law), and as material witnesses under 18
U.S.C. sec. 3144. It appears that the vast majority of the people being
detained in connection with this investigation are being detained on
pretexts: they have committed a minor offense that gives law
enforcement or immigration authorities the power to detain them even
though they would not under normal circumstances be detained for such
conduct. By all accounts, the overwhelmingly majority of detainees are
Muslims or Arabs, come from Middle Eastern countries, and are non-
citizens.
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\22\ Post Staff writters, ``A Deliberate Strategy of Disruption'',
The Washington Post, November 4, 2001, p. A1.
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We have the most urgent concern for the detainees who are being
held on immigration charges because their access to legal counsel is
limited. Unlike defendants in criminal cases or persons held as
material witnesses, those who face immigration charges are not entitled
to counsel at government expense if they cannot afford an attorney.
Therefore, immigration detainees will have legal representation if they
are able to retain counsel (or someone retains counsel for them) or are
able to get free legal representation. Restrictions on telephone
access, contact with family members and visits by pro bono lawyers and
organizations that offer free legal representation impose practical
impediments that deny detainees the opportunity to find or retain
counsel.
The public has virtually no information about the whereabouts of
persons held on immigration violations. Are they being held in custody
or have they been released? Where are they being held? How long have
they been held? Do they have an attorney? The fact that immigration
detainees can be held in so many facilities, coupled with the secrecy
surrounding the detention, makes it extremely difficult to determine
whether the detainees have access to counsel, are allowed contact with
their families, and are being properly treated. We know that at least
one detainee--55-year-old Mohammed Rafiq Butt--died in custody.\23\ On
October 23, Mr. Butt was found dead in his cell at the Hudson County
jail in Kearny, New Jersey, the cause of death ruled heart failure. We
know of others who have been held for weeks without any immigration
charges being lodged against them. This contradicts the Attorney
General's assurances that all those who are being detained are being
promptly charged within 48 hours. It also violates the recently enacted
Patriot Act, which requires that, even for those individuals certified
by the Attorney General as suspected terrorists, charges must be filed
within 7 days or the individuals must be released.
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\23\ Somini Sengupta, ``Pakistani Man Dies in I.N.S. Custody,'' The
New York Times, October 25, 2001.
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Until very recently, the Department of Justice had not released any
information about the detainees other than some numbers about how many
there were. However, perhaps responding to mounting political pressure,
Attorney General Ashcroft recently released some information. While
this is a positive development, the released information is woefully
incomplete. The basic information that the ACLU and other citizens'
groups have been requesting is not classified or privileged, nor could
its release raise any legitimate national security concerns. To the
contrary, the information we seek should be a matter of public record:
the names of the detainees; their citizenship status; where they are
being held; the dates they were arrested or released (if applicable);
the nature of the criminal or immigration charge; the disposition of
the material witness warrant; the identity and names of addresses of
the attorneys representing the detainees; the courts where the charges
were heard and whether the proceedings were sealed, including the legal
authority to close the proceedings; and any policy directives or
guidance issued to officials about making public statements or
disclosures about the detainees. Members of Congress have asked for
similar information.
The information that has been provided by the De