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81–998 PDF 2002

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

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

WEDNESDAY, NOVEMBER 28, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 37

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 29

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 44

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 58

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 4

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 20

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 41

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 34

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 25

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 59

WITNESSES 

Barr, William P., former Attorney General of the United States ........................ 60

Bell, Griffin B., Senior Partner, King and Spalding, and former Attorney 

General of the United States, Washington, D.C. ............................................... 74

Chertoff, Michael, Assistant Attorney General, Criminal Division, Department 

of Justice, Washington, D.C. ............................................................................... 8

Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 

School, and former Attorney General of the United States .............................. 68

Katyal, Neal, Visiting Professor, Yale Law School, and Professor of Law, 

Georgetown University, Washington, D.C. ........................................................ 93

Martin, Kate, Director, Center for National Security Studies, Washington, 

D.C. ........................................................................................................................ 85

Silliman, Scott L., Executive Director, Center on Law, Ethics and National 

Security, Duke University School of Law, Durham, North Carolina ............... 79

TUESDAY, DECEMBER 4, 2001 (MORNING SESSION) 

STATEMENTS OF COMMITTEE MEMBERS 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 133

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 134

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 123

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 154

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 121

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 127

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 154

WITNESSES 

Lynch, Timothy, Director, Project on Criminal Justice, Cato Institute, Washington, D.C. ........................................................................................................... 184

Nardotti, Michael J., Jr., Major General (Retired), former Army Judge Advocate General, and Partner, Patton Boggs LLP, Washington, D.C. .................. 172

Prosper, Hon. Pierre-Richard, Ambassador-at-Large for War Crimes Issues, 

Department of State, Washington, D.C. ............................................................. 135

Sunstein, Cass R., Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of 

Chicago, Chicago, Illinois .................................................................................... 178

Page

IV

Terwilliger, George J., III, former Deputy Attorney General, and Partner, 

White and Case, Washington, D.C. .................................................................... 156

Tribe, Laurence H., Tyler Professor of Constitutional Law, Harvard Law 

School, Cambridge, Massachusetts ..................................................................... 159

TUESDAY, DECEMBER 4, 2001 (AFTERNOON SESSION) 

STATEMENTS OF COMMITTEE MEMBERS 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 199

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 208

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 295

Sessions, Jeff, a U.S. Senator from the State of Alabama ................................... 279

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 294

WITNESSES 

Al-Maqtari, Ali, New Haven, Connecticut ............................................................. 212

Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of the American Immigration Lawyers Association .............................................................. 218

Dinh, Viet D., Assistant Attorney General, Office of Legal Policy, Department 

of Justice, Washington, D.C. ............................................................................... 203

Emerson, Steven, Executive Director, Investigative Project, Washington, D.C. 241

Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San Antonio, 

Texas on behalf of the National Association of Criminal Defense Lawyers .... 229

Strossen, Nadine, President, American Civil Liberties Union, New York, New 

York ....................................................................................................................... 262

Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C. ........................................................................................................... 225

THURSDAY, DECEMBER 6, 2001

STATEMENTS OF COMMITTEE MEMBERS 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 345

Edwards, Hon. John, a U.S. Senator from the State of North Carolina ............. 360

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 334

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 329

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 302

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 325

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 338

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 297

McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky .................. 355

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 347

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 317

WITNESS 

Ashcroft, Hon. John, Attorney General of the United States, Washington, 

D.C. ........................................................................................................................ 309

SUBMISSIONS FOR THE RECORD 

Addicott, Jeffrey F., Visiting Professor of Law, St. Mary’s University School 

of Law, San Antonio, Texas, letter ..................................................................... 365

American Civil Liberties Union, Washington, D.C.: 

November 28, 2001, statement ........................................................................ 365

Timothy H. Edgar, Legislative Counsel, December 4, 2001, statement ...... 370

American College of Trial Lawyers, Irvine, California, letter and statement .... 380

American Council of Chief Defenders, Washington, D.C., statement and attachment ............................................................................................................... 381

American Federation of Labor and Congress of Industrial Organizations, 

Washington, D.C., Executive Council, article .................................................... 383

American Immigration Lawyers Association, Washington, D.C., statement ...... 384

Amnesty International USA, New York, New York: 

November 28, 2001, news release ................................................................... 385

Page

V

Amnesty International USA, New York, New York—Continued

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

Page

VI

Schulz, William F., Amnesty International USA; Kenneth Roth, Human 

Rights Watch; Gay McDougall, International Human Rights Law Group; 

Catherine Fitzpatrick, International League for Human Rights; Michael 

Posner, Lawyers Committee for Human Rights; Lynn Thomas, Minnesota 

Advocates for Human Rights; Len Rubenstein, Physicians for Human 

Rights; and Todd Howland, Robert F. Kennedy Memorial Center for Human 

Rights, joint letter ................................................................................................ 581

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

statement .............................................................................................................. 582

Slaughter, Anne-Marie, Professor of Law, Harvard Law School, Cambridge, 

Massachusetts: 

New York Times, November 17, 2001, article ................................................ 584

and William Burke-White, December 3, 2001, statement ............................. 585

Wall Street Journal, December 4, 2001, editorial ................................................. 586

Washington Post, November 16, 2001, editorial ................................................... 587

Wedgwood, Ruth, Wall Street Journal, December 3, 2001, article ...................... 588

Wilgoren, Jodi, New York Times, December 4, 2001, article ............................... 590

York, Byron, National Review, December 3, 2001, article ................................... 591 

ALPHABETICAL LIST OF WITNESSES 

Al-Maqtari, Ali, New Haven, Connecticut ............................................................. 212

Ashcroft, Hon. John, Attorney General of the United States .............................. 309

Barr, William P., former Attorney General of the United States ........................ 60

Bell, Griffin B., Senior Partner, King and Spalding, and former Attorney 

General of the United States, Washington, D.C. ............................................... 74

Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of the American Immigration Lawyers Association .............................................................. 218

Chertoff, Michael, Assistant Attorney General, Criminal Division, Department 

of Justice, Washington, D.C. ............................................................................... 8

Dinh, Viet D., Assistant Attorney General, Office of Legal Policy, Department 

of Justice, Washington, D.C. ............................................................................... 203

Emerson, Steven, Executive Director, Investigative Project, Washington, D.C. 241

Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San Antonio, 

Texas on behalf of the National Association of Criminal Defense Lawyers .... 229

Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 

School, and former Attorney General of the United States .............................. 68

Katyal, Neal, Visiting Professor, Yale Law School, and Professor of Law, 

Georgetown University, Washington, D.C. ........................................................ 93

Lynch, Timothy, Director, Project on Criminal Justice, Cato Institute, Washington, D.C. ........................................................................................................... 184

Martin, Kate, Director, Center for National Security Studies, Washington, 

D.C. ........................................................................................................................ 85

Nardotti, Michael J., Jr., Major General (Retired), former Army Judge Advocate General, and Partner, Patton Boggs LLP, Washington, D.C. .................. 172

Prosper, Hon. Pierre-Richard, Ambassador-at-Large for War Crimes Issues, 

Department of State, Washington, D.C. ............................................................. 135

Silliman, Scott L., Executive Director, Center on Law, Ethics and National 

Security, Duke University School of Law, Durham, North Carolina ............... 79

Strossen, Nadine, President, American Civil Liberties Union, New York, New 

York ....................................................................................................................... 262

Sunstein, Cass R., Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of 

Chicago, Chicago, Illinois .................................................................................... 178

Terwilliger, George J., III, former Deputy Attorney General, and Partner, 

White and Case, Washington, D.C. .................................................................... 156

Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C. ........................................................................................................... 225

Tribe, Laurence H., Tyler Professor of Constitutional Law, Harvard Law 

School, Cambridge, Massachusetts ..................................................................... 159

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

WEDNESDAY, NOVEMBER 28, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 9:05 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kennedy, Kohl, Feinstein, Feingold, 

Schumer, Durbin, Hatch, Grassley, Specter, Kyl, DeWine, Sessions, 

and McConnell. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. This is one of a series of hearings this Committee is holding on the Department of Justice’s response to the September 11th attacks and on implementation of 

the anti-terrorism legislation, the USA PATRIOT Act. 

I know I speak for those on both sides of the aisle in beginning 

this hearing by commending the hardworking men and women of 

the agencies of the Department of Justice and also our State and 

local officers for their dedicated law enforcement efforts. We have 

seen it across this country, and, of course, we have seen it especially in the affected areas of the terrorist attacks. 

Now, at the time Congress worked on the anti-terrorism bill, 

many observed how important congressional oversight would be in 

the aftermath. And to fulfill our constitutional oversight obligation, 

Senator Hatch and I invited Attorney General Ashcroft to appear 

before the Committee today, but he asked to have his appearance 

put off until next week so that he could spend time with the U.S. 

Attorneys who are in town today and tomorrow. And on Monday, 

I learned that the Department was asking that Mr. Chertoff appear 

as our first witness at this hearing. 

I have accommodated both requests by the Attorney General. I 

look forward to his appearance before the Committee next week on 

December 6th. In the meantime, our oversight hearing today and 

additional hearings next Tuesday should help build a useful record 

on several significant issues. 

We are all committed to bringing to justice those involved in the 

September 11 attacks and to preventing future acts of terrorism. 

As we showed in our passage of anti-terrorism legislation, Congress 

2

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 interVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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national 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 

4

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 

5

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 

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forcement 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 

7

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 

8

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 

9

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. 

10

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. 

11

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-inChief 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, 

12

already made use of the new authorities relating to nationwide search warrants, 

and amendments to 18 U.S.C. § 2703 which allow us to more efficiently obtain email 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. 

13

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-enVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
14

forcement 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 locatedat great risk. Proceedings before military commissions can better safeguard classified information that may be used at the trial of members of al Qaida. Commissions 

15

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 followup 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 extraVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
16

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? 

17

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. 

18

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 

19

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 

20

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. 

21

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 

22

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. 

23

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 

24

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 

25

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 apVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
26

propriation 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 

27

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—

28

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. 

29

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 

30

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 

31

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 

32

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—

33

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. 

34

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 realVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
35

istic 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 

36

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 

37

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 terVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
38

rorism. 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. 

39

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, 

40

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 wellaccepted 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 

41

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 

42

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. 

43

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 

44

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 

45

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 

46

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 

47

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 

48

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. 

49

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. 

50

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 

51

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—

52

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 

53

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 

54

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-andtake. 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 

55

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 

56

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. 

57

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 

58

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 

59

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. 

STATEMENT OF

I look forward to today

HON. STROM

’s testimony.

THURMOND

f, 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. 

§ 821). 

It has been suggested that the President does not have authority under 10 U.S.C. 

§ 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. 

60

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, 

61

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. 

62

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 

63

1 Article 5 of the North Atlantic Treaty can only be invoked in the case of an ‘‘armed attack’’

against a NATO member. 

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. § 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. § 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

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 

64

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. 

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). 

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–

65

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. 

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

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. § 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 

66

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. § 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. § 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 investigaVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
67

tion. 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. § 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. § 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. § 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 

68

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. 

69

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 

70

1Military 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). 2George F. Will, Trials and Terrorists, WASHINGTON POST, Nov. 22, 2001, at A47. 3The 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 

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

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. 

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 

71

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. 4 E.g., Hostage Taking Act, 18 U.S.C. § 50 U.S.C. §§ 2331–2332 (2001) (killing of U.S. citizens 

abroad). 5Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801–1811 (2001). 6 Classified Information Procedures Act, 18 U.S.C. §§ 1–16 (2001). 7Director 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.

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. 

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

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 

72

10The 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. 11Greg 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. 12 Unlike the ‘‘military order,’’ the joint resolution is also limited to those thought to be involved with the attacks of September 11th. 13Fred Hiatt, Democracy: Our Best Defense, WASHINGTON POST, Nov. 19, 2001, at A21. 14Sam 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. 15Posse Comitatus Act, 18 U.S.C. § 1385 (2001). 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. 17For 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 recogjudicial 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. 

(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. 

(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

(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. 

(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

(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

(7) It will end a twenty-year successful effort to win respect and trust for a longridiculed 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

(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

73

nized in the trial of criminal cases in the United States district courts ‘‘so far as he considers 

practicable.’’ 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. 

(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

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 

74

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. 

75

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:]

76

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 CON- SISTENT WITH THE UNITED STATES CONSTITUTION AND WITH THIS NATION’S HISTOR- ICAL 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. § 821], and has provided that the President shall 

have the power to prescribe the procedures to be used [10 U.S.C. § 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 

77

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 SEP- TEMBER 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 au- thority 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 

78

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.’’

79

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 

80

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:]

81

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. 

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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. §§ 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. § 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. § 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. § 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. § 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. § 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. 

83

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. 

84

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 § 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 antiterrorism 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 

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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 measVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00091 Fmt 6633 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
86

ures. 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 

87

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 

88

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 

89

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 

90

1While 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.’’

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. 

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. 

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2 John Dually and Wayne Washington, ‘‘Diplomats Fault Lack of US Notice on Many Detainees’’, The Boston Globe, November 1, 2001. 

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

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 

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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. 

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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 

94

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 purVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00100 Fmt 6633 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
95

chasers, 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 

96

1 E.g., Johnson v. Eisentrager, 339 U.S. 763 (1950). 

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. § 4(c)(1); see also 

§ 3(a), § 7(d). The order authorizes punishment up to ‘‘life imprisonment or death.’’ § 4(a). Both conviction and sentencing (including for death) is determined when twothirds 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.’’ § 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 § 4(c)(4); § 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.’’ § 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, § 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

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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). 3See, 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). 

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. 

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. 

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 counVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00103 Fmt 6633 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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4See 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’’). 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. 

try 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 § 224, so too a declaration of war restricts the duration and scope 

of military jurisdiction. No such confinement exists in the Military Order. 

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

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. § 1471–1593, and the Espionage Act of 1917, 50 U.S.C. § 38, had recognized the validity of military tribunals 

in times ‘‘of war.’’ Quirin, 317 U.S. at 26–27. But applicable legislation here is lackVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00104 Fmt 6633 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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6The Articles of War appeared at 10 U.S.C. §§ 1471–1593 (1940) but was later replaced by 

the Uniform Code of Military Justice, 10 U.S.C. §§ 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. § 821. Congress’s authority here arises out of Article I, § 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’’). 

ing.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

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 fullscale 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.’’ § 1(e) (emphasis added); see also § 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 

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8We 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 9The 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. 

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

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. 

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 

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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 

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11More 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’’). 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. 13Yamashita 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’’). 14The 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. 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.’’). 

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. 

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

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

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. 

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 

103

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 § 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, § 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. § 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. §§ 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 

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16The 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. § 821. 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. 18Making 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. 

the concurrent jurisdiction of military tribunals, 10 U.S.C. § 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. 

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

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. 

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19Dames & 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. 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, timeconsuming, 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.’’). 

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. 

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 

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21The 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. 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.’’). 23There 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. 

Court is hesitant to defer to the Executive in the absence of specific Congressional 

mandate).21

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

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). 

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 

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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 CON- CERNS 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 

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24See Pub. L. No. 95–511, 92 Stat. 1783 (codified as 50 U.S.C. §§ 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). 

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. 

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.’ ’’

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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. 

110

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, 

111

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 followup. 

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 

112

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 nonstate 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 ofVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00118 Fmt 6633 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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fenses 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? 

114

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 

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cause 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? 

116

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 noncitizens, 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 courtsmartial. 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? 

117

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 

118

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. 

119

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.] 

(121)

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 

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122

pects 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. 

123

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. 

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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 

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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 

126

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 

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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 

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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 

129

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) <http:www.aclu.org/safeandfree/>. 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, § 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) <http://www.pfaw.org/news/

press//2001–11–28.347.phtml.>. 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 § 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 

130

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, § 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 

131

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 § 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. § 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. 

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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. 

133

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. 

134

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 RwanVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00140 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
135

da. 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 

136

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 

137

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.’’

138

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 conVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00144 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
139

sent, 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 Ambassadorat-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 

140

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 

141

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. 

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sioned 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 

143

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. 

144

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 

145

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. 

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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 

147

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 

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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 

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pressed 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 

150

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 

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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 

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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 comVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00158 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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mission 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. 

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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

f, 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. § 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 

155

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 quesVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00161 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
156

tions 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 counterterrorism intelligence mission. Requiring that all terrorists be tried 

157

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 Commanderin–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. 

158

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 counterterrorism 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 

159

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 

160

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 

161

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: 

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1See, e.g., David J. Garrow, Aftermath: The Rule of Fear; Another Lesson From World War 

II Internments, N.Y. Times, Sept. 23, 2001 § 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. 3The 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. 

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. 

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,’’ § 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, 

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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.’’ § 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. 6Would the Senate itself be culpable for having ‘‘knowingly harbored’’ Gerry Adams? 

§ 2(a)(1)(ii). 

7The 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,’’ § (a)(1)(ii), including many groups doubtless uninvolved in the September 

11 attack even by the most capacious definition of involvement. 

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. . .’’? § 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.’’ 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—

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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). 9The 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, § A at 27 (emphasis added); see also Military Order 

§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.’’). 10The Order confuses the role of legislator, see §§ 4(b) and 6(a) (power to promulgate ‘‘orders 

and regulations’’ necessary for commission); policeman, see § 3 (power to ‘‘detain[] at an approis no substitute for replacing that sword with a solid framework for the judicious 

use of executive force in bringing justice to the terrorists. 

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). 

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 promulVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00170 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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priate location’’); prosecutor, see §§ 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 ‘‘con- duct. . .prosecution’’); judge see § 4(c)(2); and court of appeal, see § 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 

§ 2(a), and of ultimate court of appeal under § 4(c)(8). 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,’’§ 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 citi- zens 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,’’ § 3(a), and ‘‘tri[al] by military commission. . .and. . .punishment in accordance with the penalties provided 

under applicable law, including life imprisonment or death.’’ § 4(a). 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.’’ § 7(b). 15 see Alberto R. Gonzales, supra note 8. Cf. George Orwell, 19894 (1949). 

gated 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). 

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, § 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, § 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

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 

166

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. 

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, § 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 prosVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00172 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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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). 

ecuting 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

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,’’ § 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,’’ § 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 alterVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00173 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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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’’). 18This 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. 19The 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 §§ 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. 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. 21General courts martial require ‘‘a military judge and not less than five members’’ of the 

panel, and may impose capital sentences. 10 U.S.C. §§ 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. 

22To 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. 

native to their indefinite detention by the United States, at a suitable place outside 

our borders, unless and until their repatriation becomes possible.17

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 instance18—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) § 412(b) (providing expedited habeas corpus review).19

4. In addition, of course, Congress would do well, acting under its Article I, § 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. 

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. 

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 

169

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. § 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. § 816. At least one trained lawyer sits on the court, 10 

U.S.C. § 826, and, absent exigencies of war, the accused is entitled to counsel to defend him, § 827; to know the charges proffered against him, § 830; to be free from 

compulsory self-incrimination, § 831; and to conduct a limited investigation of the 

facts surrounding the charge, § 832. 

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 twothirds vote that the November 13 Order would require. See § 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 § 4(c)(8) (trial record submitted for President’s ‘‘review and final decision’’). It has been an axiom of AngloAmerican 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. 

170

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. §§ 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, § 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. 

171

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 

172

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 

173

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. 

174

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. 

175

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 

176

1The 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. 

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,’’ en- acted 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

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 

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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 

178

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 

179

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 

180

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: 

181

1To 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.’’). 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. 

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. 

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. 

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. 

182

3These 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. 

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. 

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 

183

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) 

Continued

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 

184

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. 

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. 

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 

185

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 

186

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). 

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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 acVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00193 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
188

cused 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 

189

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. 

190

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 

191

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 

192

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. 

193

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. 

194

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. 

195

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 

196

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. 

197

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.] 

(199)

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. 

200

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 

201

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 

202

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 

203

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 horVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00209 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
204

rendous 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 naVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00210 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
205

tion’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 enVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00211 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
206

emies 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 

207

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 handin-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. 

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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 

209

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.] 

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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? 

211

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. 

212

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. 

213

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 

214

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 

215

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 immeVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00221 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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diately 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 

217

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. 

218

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 

219

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 availVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00225 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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able. 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 FreeVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00226 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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dom 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:

222

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. 

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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. CurtisDiop 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 

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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 

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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 

226

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 

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that the lawyer may be furthering the crime. And so with the proper safeguards that I agree are necessary not to chill the attorneyclient 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 

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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 AlMaqtari. 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:

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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 

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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 

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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 fifthyear 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: 

232

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’ re- peated 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 

233

1For 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. 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. 

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 attorneyclient relations, suggests that this Committee’s continued vigilance is warranted.1

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

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, wellmeaning but without understanding.’’ Olmstead v. United States, 277 U.S. 438, 479 

(1928) (Brandeis, J., dissenting). 

234

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.] 


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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 

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1 Ron Fournier. ‘‘U.S. moves on Islamic money exchanges in Minnesota, elsewhere.’’ The Associated Press. November 7, 2001. 2 Ibid. 

3David 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. 

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

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. 

244

6 United States v. Usama Bin Laden et al. trial transcript, March 20, 2001. 

7 United States v. Usama Bin Laden et al., trial transcrit, February 20, 2001. 8 A copy of this business card is included as Appendix ‘‘A’’. 9See Appendix ‘‘B’’ for documentation of this fact. 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. 12 United States v. Usama Bid Laden et al., trial transcript, May 1, 2001.

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

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

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

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

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

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. 

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13The 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. 

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 AlQaeda. 

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

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 

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14 Excerpts of Mohammed’s October 20, 2000 plea are attached as Appendix ‘‘C’’. 15See Appendix ‘‘C’’. 16See Appendix ‘‘C’’ for further excerpts of Mohammed’s plea. 

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. 

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

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 

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17Pedro Ruz Gutierrez. ‘‘Case Builds Against a Cabbie.’’ The Orlando Sentinel. July 19, 1999. 18 Ibid. 19 United States District Court for the SOurthern District of NY, Indictment of Ihab Mohamed 

Ali., p.5. 20 Ibid. 21 A copy of the agreement is attached as Appendix ‘‘D’’. 

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. 

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. 

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

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. 

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 AlIslami, 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 alIslamiah (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 artiVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00253 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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22 Emmanuel Sivan and Menachem Friedman, Religious Radicalism and Politics in the Middle 

East, SUNY Press, 1990. 23This evidence was released to subsequent to the first immigration bond determination hearings for Mazen Al-Najjar in Orlando, Florida in 1996 and 1997. 24See Appendix ‘‘D’’. 25 Additional information on the Palestinian Islamic Jihad Network in the United States is 

attached as Appendix ‘‘E’’. 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. 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. 28The 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. 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: 

cle 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. 

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

By utilizing the agreement between WISE and USF24 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

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 AlMuqawama 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. 

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

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 

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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. 31 Ibid. p. 5 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, ¶ 3. 

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. 

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

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

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

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 

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33Kay 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. 34Kevin Lynch, ‘‘Ford engineer seen in Lebanon: Newsletter publisher says people have seen 

man suspected of supporting terrorists,’’ Detroit News, September 4, 1998. 

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

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.

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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.

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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 shortterm 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 imVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00268 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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portant 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 

264

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 

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1Washington Post, October 27, 2001. 2 66 Fed. Reg. 55062 (October 31, 2001); 28 C.F.R. sec. 501.3(d) 

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) 5Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir. 1978). 6 United States v. Zolin 491 U.S. 554, 109 S. Ct. 2619, 2631, 105 L.Ed.2d 469 (1989). 

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

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

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

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

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 

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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). 9Seidler & Berlin v. United States, 524 U.S. 379, 118 S. Ct. 2081, 2088, 141 L.Ed. 2d 379 

(1998). 10Gideonv. Wainwright, 372 U.S. 335, 339–40, 83 S. Ct. 792, 794 (1963). 11Maine v. Moulton, 474 U.S. 159 170, 106 S. Ct. 477, 484, 88 L.Ed. 481 (1985). 12 United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973). 13Weatheford 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). 14 Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). 15McCarthy v. Madigan, 503 U.S. 140, 153, 112 S. Ct. 1081, 1091, 117 L.Ed.2d 291 (1992). 16Procunier 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) 18Dawson v. Kendrick, 527 f. Supp. 1252, 1314 (S.D.W.Va. 1981). 19Muhammad v. Pitcher 35 F.3d 1081, 1083 (6th Cir.1994). 

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

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

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-ofcounsel 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. 

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

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 

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20 United States v. DiDomenico, 78 F.3d 294, 299 (7th Cir. 1996). 21One 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. 22Post Staff writters, ‘‘A Deliberate Strategy of Disruption’’, The Washington Post, November 

4, 2001, p. A1. 

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

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 largescale 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. 

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 

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23Somini Sengupta, ‘‘Pakistani Man Dies in I.N.S. Custody,’’ The New York Times, October 

25, 2001. 

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. 

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. 

Until very recently, the Department of Justice had not released any information 

about the detainees other than some numbers about how many there were. However, perhaps responding to mounting political pressure, Attorney General Ashcroft 

recently released some information. While this is a positive development, the released information is woefully incomplete. The basic information that the ACLU and 

other citizens’ groups have been requesting is not classified or privileged, nor could 

its release raise any legitimate national security concerns. To the contrary, the information we seek should be a matter of public record: the names of the detainees; 

their citizenship status; where they are being held; the dates they were arrested or 

released (if applicable); the nature of the criminal or immigration charge; the disposition of the material witness warrant; the identity and names of addresses of the 

attorneys representing the detainees; the courts where the charges were heard and 

whether the proceedings were sealed, including the legal authority to close the proceedings; and any policy directives or guidance issued to officials about making public statements or disclosures about the detainees. Members of Congress have asked 

for similar information. 

The information that has been provided by the Department of Justice is better 

than the total wall of silence that previously existed, but still inadequate. The government has now released the names of 93 people who have been charged with federal crimes but has not said where they are being held, nor provided any information about any of the people arrested on state or local charges who were also included in the DOJ’s tally of 1200 arrests. It is unacceptable that the government 

continues to refuse to provide the names of the immigration detainees, the locations 

where they are being held, or the identities of their lawyers. Without the names of 

the detainees it is impossible to verify if they are being properly treated. The DOJ 

should immediately allow pro bono attorneys and legal organizations to have in-person access to every immigration detainee wherever held. 

It is not for lack of trying that we have been unable to get information about the 

detainees. On October 17, the ACLU wrote to the Attorney General asking him for 

information about the detainees. He did not respond to that letter. We posed similar 

questions to the Director of the FBI, Robert Meuller, at two meetings on September 

25 and October 25. When those requests for information failed, we filed, along with 

other organizations, a request under the Freedom of Information Act on October 29. 

Subsequent to filing the FOIA request, on October 30, we met with Commissioner 

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24 An immigration judge is an administrative law judge employed by the Department of Justice to render independent decisions in immigration proceedings. IJ’s cannot consider constitutional matters. Their decisions are subject to review by the Board of Immigration Appeals (BIA) 

decisions can be reversed by the Attorney General. 

Ziglar of the Immigration and Naturalization Service who also did not provide the 

information. Although some information has been provided since the time of our 

FOIA request, the disclosures have been utterly inadequate, particularly because 

the information requested should be publicly available. 

Further legal action may well be necessary to secure the Justice Department’s compliance with our FOIA request, especially in light of the Attorney General’s new directive discouraging the release of information pursuant to FOIA requests. The 

memorandum also informs agencies that the Department of Justice will back up 

their decisions not to release information. On October 12, 2001, Attorney General 

Ashcroft issued a ‘‘Memorandum for Heads of all Federal Departments and Agencies’’ instructing them on how to respond to FOIA requests. ‘‘When you carefully 

consider FOIA requests and decide to withhold records, in whole or in part, you can 

be assured that the Department of Justice will defend your decisions unless they 

lack a sound legal basis or present an unwarranted risk of adverse impact on the 

ability of other agencies to protect other important records.’’ Ashcroft established a ‘‘sound legal basis’’ standard for complying with FOIA requests. This memorandum 

superseded a 1993 memorandum from Attorney General Janet Reno, which encouraged agencies to release information under the FOIA unless it was ‘‘reasonably foreseeable that disclosure would be harmful.’’ Reno’s standard encouraged disclosure 

unless there was a reason not to, whereas Aschroft’s discourages disclosure unless 

there is a sound legal basis to do so. The fact that the Attorney General has pledged 

DOJ resources to defend any FOIA challenges is a further indication of the degree 

to which this administration is discouraging an open government. 

The Attorney General’s ongoing refusal to provide requested, important information about the detainees appears to reflect his general philosophy of withholding as 

much government information as possible, as set out in his October 12, 2001 memorandum, rather than any specific legal justification for withholding this particular 

government information. When questioned by members of the Senate Judiciary 

Committee at an oversight hearing on November 27, 2001, Assistant Attorney General Michael Chertoff said there was no legal reason why the names of all the detainees could not be released. Even though it could legally do so, the DOJ has not 

released the names of the detainees who have been charged with immigration violations. Assistant Attorney General Chertoff explained that the Attorney General 

wishes to protect the privacy of the detainees and does not wish to compile and release a list of detainees for fear that the list will get back to Osama bin Laden and 

he will learn what has happened to some of his ‘‘sleepers.’’ It is highly unlikely that 

bin Laden would not know if one of his soldiers was taken into custody. However, 

the slight possibility that such a list might provide bin Laden with some information 

is overridden by the much greater public interest in making sure that 1,200 people 

are not being held incommunicado. 

Significantly, the Attorney General’s October 12, 2001 memorandum discouraging 

disclosure in response to the FOIA requests stresses the special importance of maintaining the confidentiality of any communications with attorneys. ‘‘Congress and the 

courts have long recognized that certain legal privileges ensure candid and complete 

agency deliberations without fear that they will be made public. Other privileges ensure that lawyers’ deliberations and communications are kept private. No leader can 

operate effectively without confidential advice and counsel.’’ Ironically, the Attorney 

General appears to appreciate the need for private conversations with counsel on 

the part of the government itself, but not on the part of the individuals who are 

being detained and facing prosecution by the government. 

New Authority for Attorney General to Hold People in Detention 

Adding to the concern about unfair detention is a new regulation that makes it 

easier for the government to detain non-citizens. This regulation was issued by the 

Attorney General on October 26 and went into effect on October 29. Like many postSeptember 11 regulations, it was put into effect under the administration’s ‘‘emergency rule-making authority’’ that exempts the Attorney General from complying 

with the normal notice and comment period. The new rule allows the Immigration 

and Naturalization Service to set aside any release order issued by an immigration 

judge,24 simply because it disagrees with the immigration judge’s determination, in 

cases where the agency says it believes that the non-citizen poses a danger to the 

community or is a flight risk. Previously, the immigration service needed to request 

a stay from the board of immigration appeals if it disagreed with an immigration 

270

judge’s determination, except in limited circumstances where the individual had 

been convicted of certain crimes or accused of terrorism. Now, even for individuals 

who are merely accused of overstaying their visas, the hearing before the immigration judge is has been rendered meaningless because the decision whether to detain 

or release rests exclusively with the INS. 

In some cases, immigration detainees who have been ordered released on bond by 

an immigration judge (before the regulation changed) or who have been authorized 

to leave the country under an order of ‘‘voluntary departure’’ nonetheless remain in 

detention because they have not been ‘‘cleared’’ by the FBI. Under these circumstances, the detention is solely the result of an FBI hold and not based on any 

immigration authority. We do not know the total number of cases in which such 

holds constitute the basis for ongoing detention. 

This new regulation expanding the government’s power to detain non-citizens 

raises some of the same constitutional concerns as the other new regulation discussed above, authorizing government monitoring of confidential attorney-client 

communications. Both reduce the traditional, essential role of judges to review executive action that limits individual rights and freedom—the Fifth Amendment right 

not to be deprived of liberty without due process of law, and the Sixth Amendment 

rights to counsel and access to the courts respectively. Judicial review is a critical 

lynchpin in our constitutional scheme of checks and balances, providing an important curb against executive abuses of power. In both cases, the government essentially takes a ‘‘trust-us’’ stance, urging Congress and the public to trust the Justice 

Department not to abuse its newly claimed unilateral powers to override the attorney-client privilege and to hold non-citizens in custody. But one of the touchstones 

of democracy is a healthy distrust of government. 

THE QUESTIONING OF 5,000 MEN BASED ON THEIR COUNTRY OF ORIGIN

Another area of concern, which has come to light in recent weeks, is the Attorney 

General’s November 9, 2001 directive, directing the FBI and other law enforcement 

officials to conduct interviews of at least 5,000 men, 18 to 33 years old, who have 

entered the U.S. on non-immigrant visas in the past two years and come from countries where terrorist activities are known or believed to occur. The DOJ’s list of the 

young men targeted for government questioning thus was compiled solely on the 

basis of national origin. The DOJ acknowledges that it has no basis for believing 

that any of the thousands of men on this list even has any knowledge relevant to 

the investigation, and it stresses that it has no basis for suspecting any of them of 

any involvement in any terrorist activities, or of any other criminal activity, or any 

violation of immigration laws. The DOJ apparently assumes that people fitting this 

profile would have information about terrorism. 

The ACLU recognizes the right—indeed the responsibility—of federal law enforcement to gather relevant information in the course of its investigation into the September 11 terrorist attacks. But discriminatory, dragnet profiling is neither an effective investigative technique nor a permissible substitute for the constitutional requirement of individualized suspicion of wrongdoing. 

To conduct the interviews, the Justice Department is relying on the assistance of 

‘‘Terrorism Task Forces’’ set up in United States Attorney districts across the country. All the targeted persons received letters from their local United States attorney 

asking them to ‘‘voluntarily’’ cooperate with the investigation. However, the wording 

of the letter implies that declining is not really an acceptable option. ‘‘While this 

interview is voluntary, it is crucial that the investigation be broad based and thorough, and the interview is important to achieve that goal. We need to hear from 

you as soon as possible—by December 4.’’ Most foreigners who receive this letter 

will feel that if they do not take part in the ‘‘voluntary’’ investigation, it will be detrimental to them. 

With hundreds of people already in jail for minor immigration violations, these 

interviews will understandably be seen as inherently coercive. This is especially true 

since the DOJ guidelines for conducting the interviews specifically instruct the 

interviewer not to inform the person of his Miranda rights, should that be a relevant consideration. 

In addition, all of the men targeted for interviews are non-citizens who have entered the U.S. legally within the past two years, many of whom come from countries 

with repressive regimes. These men are unlikely to know or to believe that they 

may have a right to refuse to answer questions when the FBI or local law enforcement officials come knocking on their doors. They are likely to believe that any refusal to answer will make them suspects. In short, while the DOJ says that is seeking ‘‘interviews,’’ to the targets, they will likely feel more like interrogations. 

271

The DOJ guidelines for these question sessions go far beyond any legitimate quest 

for factual information, and instead are intrusive and intimidating. Officials who 

conduct the questioning are instructed to inquire into the political beliefs of the targeted young men, and to ask them to report on the political beliefs of their family 

and friends. These men will be asked, for example, whether they ‘‘support’’ any 

cause that terrorists espouse. That presumably includes Palestinian statehood, 

which the Bush Administration itself supports. A true response might trigger suspicion and further investigation. A false response would be a felony. 

Other categories of information to be sought under the DOJ guidelines are equally 

intrusive and intimidating and go far beyond information relevant to the September 

11 investigation. For example, the law enforcement officials are instructed to ‘‘obtain 

the telephone numbers used by the individual and his family and close associates.’’ This heavy-handed tactic is an unwarranted invasion of privacy for people who are 

not even suspected of any wrongdoing. Compounding the intrusion is the fact that 

all the information collected is going to be stored in a searchable database maintained by the federal government. 

In ordering questioning into the political beliefs and associations of persons not 

known to have any connection whatsoever with the events of September 11, the 

DOJ directives go far beyond existing Justice Department antiterrorism guidelines. 

Those guidelines appropriately recognize government’s obligation to carefully tailor 

its investigations so as to minimize inquiry into individuals’ constitutionally protected beliefs and associations. 

Moreover, the guidelines call for questioning about and the review of documents 

concerning the target’s immigration status, and the guidelines require the questioning officials to report any suspected immigration violations they uncover to the 

INS. These features compound the coercive context of the ‘‘voluntary interviews.’’ The questions to be posed suggest that the interviews are of people who may be suspected of wrongdoing, and are not as the DOJ asserts, merely designed to elicit information about other people. 

Because of the foregoing considerations, a growing number of local police departments around the country have raised objections to these dragnet interrogations as 

an exercise in ethnic profiling and an impermissible intrusion into matters concerning personal beliefs and associations. These local police departments, accordingly, are refusing to participate in the interviewing program. These departments 

include: San Francisco and San Jose in California; Detroit, Michigan; Hillsboro, Corvallis and Portland, Oregon; and Austin and Richardson in Texas. 

At the same time that the Justice Department is conducting the ‘‘voluntary interviews,’’ last week Attorney General Ashcroft announced a ‘‘Responsible Cooperators 

Program,’’ asserting that the government would help non-citizens with their visas 

in exchange for providing information the government determines to be useful to its 

investigation. But this latest move is more suggestive of a sting operation than a 

serious, good-faith effort to collect important information in the ongoing terrorism 

investigation. The Attorney General’s vague promises are completely inconsistent 

with the specific threat of arrest and detention for any minor visa violation expressly set forth in the existing INS memo governing this investigation. The Attorney General’s vague promises are also completely inconsistent with the DOJ’s actual 

actions since September 11, of arresting and detaining hundreds of people on minor 

immigration violations. 

The Attorney General’s public statements suggest that those immigrants who 

come forward will not be arrested. However, the Attorney General’s memorandum 

governing the conduct of the questioning specifically instructs the law enforcement 

officials who are doing the questioning to contact the nearest INS official if they 

have suspicions about someone’s immigration status, and the memorandum also expressly contemplates the detention of individuals who are suspected of immigration 

violations. The memorandum states: ‘‘[I]f you suspect that a particular individual 

may be in violation of the federal immigration laws, you should call the INS representative on your Anti-Terrorism Task Force or the INS officials at the closest 

Law Enforcement Support Center. Those officials will advise you whether the individual is in violation of the immigration laws and whether he should be detained.’’ The guidelines, if followed, are bound to produce resentment against law enforcement rather than cooperation, just as racial profiling has done in the past. This undermines the hard work done by many local law enforcement agencies to establish 

positive and cooperative relationships with targeted communities, including Muslim 

and Arab communities. This resentment is already surfacing. The American-Arab 

Anti-Discrimination Committee (ADC) issued a statement on November 28 objecting 

the Responsible Cooperators Program. A portion of their statement reads:

ADC believes that this approach will be ineffective and ripe for abuse. First 

and foremost, programs that offer an easy pathway to citizenship are inherVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00277 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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25 ADC Press Release: ‘‘ADC Extremely Concerned by Ashcroft’s Latest Plan’’, November 28, 

2001. 

ently prone to fraud and abuse for personal gain. Second, had Mr. Ashcroft 

consulted with anyone familiar with the Arabic language, he would have 

known that the word ‘‘cooperator’’ has an extremely negative connotation 

that may deter many from participating in a program such as this. The use 

of this term is apt to solicit the same Arab reaction as that generated by 

the unfortunate use of the term ‘‘crusade’’ by President Bush after the September 11 attacks.25

The statement ends with a quote by ADC Vice President Khalil E. Jahshan predicting that the program will be unsuccessful because the trust has eroded between 

the government and the Arab community. ‘‘The trust between the U.S. government, 

including law enforcement agencies, and the Arab community has been eroded over 

the past few weeks by denial of due process, by revoking of attorney client privileges, by arbitrary and extended detention, and by casting the investigative net so 

broadly as to implicate thousands of innocent people.’’ The Attorney General holds all the cards; it is completely in his discretion to detain and deport or to grant a reprieve. Who would voluntarily come forward under 

these conditions, especially since the Justice Department already has detained hundreds of people based on minor visa violations? If the Justice Department is serious 

about encouraging immigrants to come forward voluntarily, the Attorney General 

should withdraw the part of the memorandum calling on law enforcement officers 

conducting terrorism-related interviews to report minor visa violations to the INS, 

and make a specific, written enforceable promise not deport those who offer information. 

CONCLUSION

The Justice Department’s recent actions, violating cherished rights and freedoms, 

have antecedents stretch back to the earliest days of the Republic. The Alien and 

Sedition Act of 1798, criminal restrictions on speech during World War I, the internment of Japanese-Ameicans following the attack on Pearl Harbor, and the blacklists 

and domestic spying of the Cold War are all instances in which the government was 

granted (or assumed) summary powers in a moment of crisis, to the inevitable regret of later generations. The diminution of liberty that accompanied these episodes 

was later understood as an overreaction to frightening circumstances; each is now 

viewed as a shameful passage in the nation’s history. After the immediate danger 

passed, it was recognized that the government had already possessed ample powers 

to address the threats at hand, making the new tools unnecessary at best and dangerous at worst. 

We welcome the many statements that Attorney General Ashcroft and other U.S. 

officials have made since September 11, promising to uphold the Constitution and 

to protect civil liberties, while pursuing the anti-terrorism campaign. Unfortunately, 

the Attorney General’s actions belie his rhetoric. Our democracy is in real danger 

if any one branch of the government becomes too powerful. From establishing military tribunals without Congressional approval, to expanding wiretapping authority 

while limiting judicial oversight, this Administration is demonstrating its disregard 

for the other two branches of government. The Constitution’s delicate balance of 

powers is becoming dangerously title toward an excess of Executive Branch power. 

We are heartened that the Senate is taking the lead in reclaiming the Congressional role of overseeing the U.S. government’s expansive, intrusive new police powers and tactics, and we hope this will be an ongoing practice. While the Administration and the public are understandably focused on waging war against terrorism, 

we ask Congress to ensure that the war on terrorism does not become a war on democracy.

Senator FEINGOLD. Thank you very much for your testimony. I 

thought the testimony was excellent from the entire panel, and 

now we will begin the first of 5-minute question rounds. 

I will start with Mr. Al–Maqtari. As you know, and as Ms. 

Strossen was just illustrating, Chairman Leahy, and Senator Kennedy and I have been pressing the administration to provide us 

with basic information about who was being detained and why. The 

administration has turned over some information, but it still has 

not provided us with anything near a full picture of who is being 

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detained and why. In response, Attorney General Ashcroft and others in the administration have said that they need not provide us 

with a complete picture because individuals who have been detained can self-identify. In other words, he is saying the detainees 

are free to call up this Committee or their member of Congress and 

tell them that they have been detained. 

Could you tell this Committee about the conditions in which you 

were held, including the conditions for communicating with the 

outside world. How many calls a day were you allowed to make to 

your lawyer and how many calls were you allowed to make each 

day to your wife and to your family members? 

Mr. AL-MAQTARI. Thank you. I have been held because my visa 

has been expired, and my marriage application did not finish yet. 

I could not talk with the outside world. I did not have any contact 

with the outside world. Sometimes I did not know what time it is, 

3:30 or 2 o’clock. So sometimes I pray at what I suppose to pray, 

3:30, I pray at 5:30 because I do not know what time is it. 

For the calls, I have, first of all, the first 2 weeks I was in general population with other inmates, so I could use a collect call 

many times, but after that, they changed my place to the segregation unit, where I was held for 23 hours a day. I have 1 hour, if 

I want to go out to break. I had 15-minute call every week. 

Senator FEINGOLD. A 15-minute call every week; is that what 

you said? 

Mr. AL-MAQTARI. This call, you use for one person, which was 

your wife, your family, your lawyer. Once you complete this call, 

you have to wait another—to the next week. This call you have to 

apply, you have to request this call. If you do not request, you do 

not have this chance to make call. So every day or every week you 

have to request phone request sheet and you write the request, ‘‘I 

would like to make a call,’’ and you have to identify or specify 

which one you want to call. If you say, ‘‘I want to call my wife,’’ you cannot call your lawyer because this call has been approved for 

your wife. 

So it was a little bit complicated. I could not reach my wife. I 

did not see her since September 15th, when I was arrested. One 

time I saw her in court, my first hearing. Because of that I asked 

my lawyer to call me because I could not reach him every day because sometimes he wanted me to answer some questions or to tell 

him about some documents he wants me to bring them from Yemen 

or from my family or from my wife. So call was very difficult. 

Even visitation, you have 1-day visitation, Friday, for 1 hour or 

2 hours, and this visitation is no contact. That means there is a 

glass between you and the person who visits you, and you talk to 

her by phone. 

Senator FEINGOLD. Mr. Al–Maqtari, it seems to me that your 

coming forward and making your identity known has had a beneficial effect on your case. The public can now see the unjust way 

in which you were treated and know you were moved from your 

family and your home without cause. Would you agree that lifting 

the veil of secrecy helps allay the fears and suspicions of neighbors 

or friends or coworkers who wondered why you were being held by 

Federal law-enforcement officials for almost 2 months. And the reason we are asking this, I believe the Attorney General has sugVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00279 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
274

gested it is sort of to your benefit and the benefit of people being 

detained to not have that information out there. 

Mr. AL-MAQTARI. I am sorry. My English is not that good. So, if 

there is another way to facilitate this question or— Senator FEINGOLD. Mr. Boyle, would you like to respond? Your 

representative can respond. 

Mr. BOYLE. Sure. I mean, there is no question in our case it 

made a tremendous difference. We were hung up for weeks. The 

Government had all of the documents that proved his full life history, that there were no gaps, that he had been at school in France, 

that he had been teaching. We could not get anyone to release 

them. Once press people started making inquiries, all of a sudden 

the analysis of his computer hard drive that had been unable to be 

done in 2 months got done, and a week later the INS came into 

court and said that the FBI had cleared him. 

So I think having, and we were very frustrated up to that point, 

with the secret hearings, the no names. The first couple of weeks 

we had no access to him. So I think there is no question that an 

open process, where the names are out there, where you have the 

normal access to find out where people are held and where the 

hearings are and what they are charged with, I think that would 

be very positive for the people who are held. 

Senator FEINGOLD. Thank you, Mr. Boyle. 

We will turn now to Senator Sessions for his first round. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Our Nation has gone through a most devastating attack. It has 

shaken the country in many ways and cost the lives of thousands 

of innocent American citizens, and I believe it is appropriate that 

the country act vigorously to defend its freedoms, but at the same 

time, I think it is appropriate that we adhere to our established 

rules wherever we possibly can and certainly not violate our constitutional protections that are significant. 

Mr. Boyle, I missed your earlier testimony. When we talk about 

secrecy, were you, you were free to tell anyone about your client’s 

incarceration, were you not? 

Mr. BOYLE. That is right, Senator. 

Senator SESSIONS. Nobody told you to keep it secret or anything 

of that nature. 

Mr. BOYLE. Absolutely not. 

Senator SESSIONS. And his family, whom he was able to contact, 

was not told such. 

Mr. BOYLE. Well, he was not able to contact his wife, but, yes, 

there was no limitation, and ultimately she was able to speak 

about his case. 

Senator SESSIONS. And with regard to any hearings that were 

held, were those closed hearings or was it handled—

Mr. BOYLE. Yes, they were closed. We were not allowed—

Senator SESSIONS. That was different than you would normally 

have in an Immigration hearing? 

Mr. BOYLE. Yes. 

Senator SESSIONS. So the hearings, could family members attend 

the hearing, if you know? 

Mr. BOYLE. The regulation, it is not a regulation, it is a letter 

from the chief Immigration judge, it does bar family members. In 

275

our case, his wife was brought in briefly because she testified for 

an hour. But under this new, it is not a regulation, it is simply 

some kind of policy letter at the Attorney General’s direction, family members are not allowed into court. 

Senator SESSIONS. Part of the Immigration law procedure? 

Mr. BOYLE. The normal regulation has certain limitations. 

Senator SESSIONS. A new reg? 

Mr. BOYLE. Right, this is not a reg. It is a policy memo. It was 

not public until about a week ago, but it has been made public 

now, one way or another, and it does bar family members. 

Senator SESSIONS. To your knowledge, anybody that is under arrest now could write a letter to the New York Times or Ms. 

Strossen or anyone they wanted to, to express concern about their 

incarceration? 

Mr. BOYLE. Sure. If you knew about it, absolutely. 

Senator SESSIONS. I think, when we talk about secrecy, we need 

to get straight here what we are talking about. The freedom to 

communicate has not been totally lifted, although those in jail have 

historically had their freedoms restricted in any number of different ways. 

Mr. GOLDSTEIN. Yes, Senator? 

Senator SESSIONS. —with regard to your client, he was held for 

4 days, you say, before he was released? How many days? 

Mr. GOLDSTEIN. He was actually picked up on September 12th. 

He was released on September 24th. So it was almost 2 weeks. 

Senator SESSIONS. And you said 4 days occurred before you were 

called or you used a figure of 4 days, I wrote—

Mr. GOLDSTEIN. No, we were actually called on the 12th. For 4 

days, we attempted to locate our client through letters and telephone calls to INS agents, to the supervisor, to attorneys with the 

Litigation Section, to the Department of Justice, to the assistant 

assigned to the case to no avail. 

We did not learn that our client had been moved to Manhattan 

until the 17th, which was, I believe, 5 days after he had been arrested, and at that point we were denied access to him until 2 days 

thereafter, on the 19th of September. 

Senator SESSIONS. So he was arrested a day or two after the attack. 

Mr. GOLDSTEIN. He was arrested at 5 a.m. the morning after the 

attack, and no doubt every American, including myself, was 

shocked and outraged at what had happened. 

Senator SESSIONS. I guess, were you given any reason that you 

could say or maybe not say as to why they thought this doctor, out 

of all of the other people in America, would be one to be detained? 

Mr. GOLDSTEIN. Not until September 18th, some 6 days after he 

was apprehended. Those reasons are part of an affidavit, which is 

sealed and made a part of the secret proceedings. 

Senator SESSIONS. But they apparently had some basis, they 

thought, to make the arrest. 

Mr. GOLDSTEIN. I can tell you that there were published accounts 

of one of the reasons was that he had made a $21-purchase at a 

location known as the White House in Washington, D.C. It turned 

out to be a food cluster, and he was buying food for his family at 

276

a time when he was at Georgetown University Medical Center 

studying, on leave from the University of Texas. 

One of the concerns I had was we had documentation that could 

have allayed any of those fears, and yet what happened was the 

investigating agents were deprived of the very information that 

would have relieved them from this course and allowed us to use 

those precious resources to go after the real bad guys at a time 

when we could ill afford to waste them. 

Senator SESSIONS. Well, I assume there are other reasons which 

are under seal— Mr. GOLDSTEIN. There are. 

Senator SESSIONS. —part of the Grand Jury and that sort of 

thing, but I guess—

Mr. GOLDSTEIN. But not only would I have been able to explain 

them quicker and did we have documentation to explain them, the 

FBI satisfied themselves once it got to that point and there was a 

lawyer, but it was 2 weeks later, and I think we could have had 

a better use of our resources and time. It is an example of why having a lawyer is not only good for the client, but good for the system 

as well. 

Senator SESSIONS. Well, I think lawyers are good for the client 

and the system, and I agree with you on that, and I do not think 

it is justified to deny that long you being able to see your client, 

and I think that was a violation, Mr. Chairman. But I guess the 

only explanation we can say is that sometimes errors occur, and in 

the stress of this moment, probably more errors probably would 

occur than normal, and I do not think that is an unjustified procedure. 

But for the most part, Ms. Toensing, the people that are held, as 

you understand it, those people are held on criminal charges; is 

that right? You have been in the Department of Justice. 

Ms. TOENSING. I believe 55 of them are on criminal charges. 

Senator SESSIONS. Criminal or immigration charges. 

Ms. TOENSING. About 500 are on immigration charges. 

Senator SESSIONS. And there are procedures for detention under 

those laws, if you are an illegal immigrant, is it not? 

Ms. TOENSING. There are. I agree—this whole panel agrees. We 

are all lawyers, I guess, except for poor Steve there—that lawyers 

are important to the system. And if there are problems there, the 

Justice Department should correct them, as far as seeing to it. I 

do think the system is better if the lawyer is there and is able to 

make it more efficient to get evidence and documents that clear 

people. 

In the case of the criminal detainees that are charged with a 

criminal offense, taxpayers pay for the lawyer to be appointed, and 

that is a good system. 

Senator SESSIONS. Well, it is troubling that the system does not 

work perfectly. It ought to work perfectly, and every person is entitled to certain rights, and I am troubled that that is not occurring. 

It did not occur, at least, Mr. Goldstein in yours, and perhaps, Mr. 

Boyle, in yours. 

Ms. TOENSING. Do you think, perhaps, in those 2 weeks that 

maybe the system is working better now, rather than just in 

those—

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Senator FEINGOLD. I am going to have to— Senator SESSIONS. That is what I was going to say, Mr. Chairman, that I hope that that is improving itself, number one, and I 

hope that we are also not ignoring potential dangers. The law-enforcement officers have great, great, difficult choices. They have got 

people that could be potentially be very dangerous, and they have 

to sometimes make decisions very quickly. 

Thank you. 

Senator FEINGOLD. I want to thank Senator Sessions for the tone 

of his remarks and his candor with regard to this incident. I would 

simply say that it is simply not a question of 2 weeks. Mr. Al– Maqtari’s story involves 2 months, and I think we need to keep 

that in mind. 

I will start another round. 

Senator SESSIONS. With regard to that, was that detention as a 

result of being illegal, not having a legal status here or as a result 

of some charge? 

Senator FEINGOLD. If you would like to answer, Mr. Boyle. 

Mr. BOYLE. If I may. Yes, the only charge against him was that 

his tourist visa had run out, and his marriage application was 

pending. That is a technical violation. We withdrew it in the interest of honesty because he no longer had the intention to be a tourist. He had validly filed an extension, but you are supposed to 

withdraw it when you no longer have the intention. 

Normally—

Senator SESSIONS. He was technically in violation. 

Mr. BOYLE. Oh, that is right. There is no question he was in violation. What is different— Senator SESSIONS. He was, therefore, detainable; is that correct? 

Mr. BOYLE. He was detainable. You would never be detained normally or maybe you would get a $1,500 bond. You would never get 

a $50,000 bond. You would never be held for 2 months without 

bond. 

Senator FEINGOLD. Thank you, Mr. Boyle. 

Yes, in light of the comment of Ms. Toensing that, for the first 

couple of weeks, it was tough and confusing, this kind of thing 

seems very hard to justify over the course of 2 months, given the 

fact, as Mr. Boyle points out, that this certainly never would have 

been done prior to September 11th. 

Let us start another round, if we could. 

Mr. Boyle, you said something in your testimony that I would 

like to have you and Mr. Goldstein amplify a bit. You said having 

a right to counsel is meaningless unless those in prison in our Immigration system are made aware of their rights and given the opportunity to actually exercise the right in a timely fashion. 

When Mr. Chertoff was here last week, he was emphatic that—

and I am quoting him here—that ‘‘Every one of these individuals 

has a right to counsel. Every person detained has the right to make 

phone calls to families and attorneys.’’

Would you comment on what your experience with representing 

detainees has told you about the truth of these statements and 

whether, in practice, you think the Department of Justice is living 

up to Mr. Chertoff’s description of the situation, and if, as I suspect, you believe the Department might have fallen short in this 

278

area, what can we do to rectify the situation? Recognizing that people in deportation proceedings do not have a right to appointed 

counsel at the Government’s expense, what should the Department 

do to make sure that the right to counsel is not rendered meaningless? 

Mr. BOYLE. In our case, there were problems. He was held completely without the ability to make calls for about 4 days, and interrogated extensively. He was arrested with a warrant that was 

prepared improperly and signed by a low-level deportation officer 

instead of the correct officer. He was given a Notice to Appear, the 

charging document, which was also unlawfully signed by a lowlevel officer instead of the appropriate officer. 

I have gotten many calls from other immigration attorneys that 

people are not getting the appropriate warnings that were talked 

about before, to be able to talk to your lawyer, to be able to have 

the consulate of your country called. I think, when you set a climate where you say do not worry about the information requests, 

where every regulation is in the other direction of holding people 

without any rights, you create a climate where it is better to cut 

the corners than to treat people correctly. 

And while I absolutely understand the importance of this investigation, I think we have to be careful about, especially when we 

are netting in hundreds of people, this is not finely targeted for, 

you know, heavy-duty suspects, we have got to be very careful 

about the climate we create. 

I do think the Justice Department knows about civil rights and 

could do it, and I think it is important to place a premium on people’s rights, as well as on bringing people into custody. 

Senator FEINGOLD. Thank you, Mr. Boyle. What do you think of 

the statements by Mr. Chertoff and the Attorney General that the 

people in detention on immigration charges are free to self-identify, 

that nothing prevents them from making their detention public, 

even though the Department will not release that information because they say it would help the terrorists? 

Mr. BOYLE. Again, I think it is a real problem. If people cannot 

get in contact with their lawyers and their families, how are they 

going to know who to call and where to call at the newspaper or 

at this Committee? I just think it is not a real alternative. I think 

it would be better to have a normal, real, functioning court system, 

where not only can those people self-identify, but where the country can satisfy itself, as we do every day, with how well our judicial 

system works. I do not think, except in the most critical cases, and 

then, yes, there are procedures for closing hearings, and if both 

parties want to close a hearing, I think that is perfectly legitimate. 

In cases like asylum cases, battered spouse cases, cases of people 

who are informing for the Government, I think there are cases 

where it is perfectly appropriate, but there needs to be input from 

both sides, as there was normally. 

I think, except in the strictest national security questions, and 

teenagers from Israel or someone like Mr. Al–Maqtari, this is being 

invoked left and right. It is being invoked for hundreds of cases. 

There is a huge disconnect from the 10 or 15 who have any al 

Qaeda connection. I think we have got to bring things more back 

into focus and preserve our heavy weapons for the heavy cases and 

279

not completely alienate the communities where we need the leads 

and we need the information by coming down like a ton of bricks 

on people who really are innocent people who just got in the way. 

Senator FEINGOLD. I would like to follow that by just making a 

couple of remarks about the difficulty I am having with trying to 

understand the Attorney General’s arguments in this area. I would 

like to just say that I find the idea that detainees can self-identify 

almost laughable, given the testimony that we have heard today 

about the conditions of detention and the restrictions that are at 

least sometimes put on the communications of the detainees with 

the outside world. 

Mr. Chertoff stated emphatically, ‘‘Let me emphasize there is 

nothing to prevent any of these individuals from identifying themselves publicly or communicating with the public.’’ But this statement, and here is where I cannot follow the logic, entirely undercuts the argument that releasing the names publicly might actually 

help Osama bin Laden by letting him know that some of his sleepers are in custody. 

If you just think about it, if the Department were really concerned about that, it would be taking steps to prevent these individuals from communicating with the outside world. It would not 

say, well, the sleepers can identify themselves and nothing prevents that, but we are just not going to do their work for them 

maybe because they are too dumb or embarrassed to inform their 

handlers that they have been taken into custody. 

A week ago the administration argued that it was prohibited by 

law from releasing that information, as Ms. Strossen was pointing 

out, that it did not want to help Mr. bin Laden by doing so and 

that it wanted to protect the privacy of the detainees. 

As we have already found out again, today, Mr. Chertoff admitted that the first reason was simply invalid last week; the second 

reason is simply fanciful, given the administration’s willingness to 

allow these detainees to self-identify. I think we have heard today 

both the protection of privacy rationale is extremely weak and that 

there is ample justification for concern about the conditions under 

which people are being held to justify overriding those concerns, to 

the extent that they exist. 

I still believe, even more strongly than when I first tried to get 

this information, the public and the Congress has a right to this 

information. And so once again I call on the administration to answer the questions we asked in our October 31st letter about people who have been detained on immigration charges. 

Senator Sessions, it is your turn. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Well, Mr. Chairman, with all due respect, I do 

not think it is laughable to say that self-identification is not meaningful. All of these people, to my knowledge, have lawyers, and 

most of them promptly, unlike Mr. Goldstein’s circumstance, and 

they can make public. Their family knows they are there. Maybe 

they do not want bin Laden’s group to know they are there. Maybe 

they are cooperating with the Government. This is a serious matter. 

280

We do not know, with absolute certainty, who is a terrorist and 

who is not. Lawyers, investigators, Immigration officials, FBI 

agents, they are struggling with some very serious matters. If they 

miss the person who is on the way to carry out a major bombing 

attack, what kind of feeling are they going to have then, that they 

had the person and they let them go or they did not pursue the 

matter effectively. 

So I believe that we need to adhere to the rule of law. I believe 

that we need to do what is required by the Constitution, but I am 

not aware that the Constitution or the statute of the United States 

requires the Attorney General to tell the names in one time of everybody he has arrested on immigration charges. 

Ms. Toensing, have you ever heard of the Attorney General listing in bulk hundreds of names of people that are arrested for individual, separate criminal or immigration charges? 

Ms. TOENSING. No. 

Senator SESSIONS. I just do not know—it seems like to me that 

is what is being called for here, and it would have some possible 

adverse consequences to the security of the United States and to 

ongoing investigations. 

What I think, Mr. Chairman, you are correct on is the holding 

the Department of Justice and our Immigration systems’ feet to the 

fire on properly disposing of cases, promptly finding out with whom 

we have legitimate evidentiary problems or facts exist that raise 

serious questions, and releasing those for whom there is no basis 

to hold them. 

Mr. Emerson, I know it was a bit unusual to have your film 

shown here, but I think it does provide context for the circumstances we are under, and I would just note that back in November, all of the Senators received a letter from their colleagues, 

Ron Wyden and Sam Brownback, who had studied your documentary. They said, among other things, ‘‘The documentary makes 

clear, and we would reiterate, that the majority of Muslims in the 

United States do not support terrorist activities and that Islam, as 

a faith, condemns acts of terrorism. It made clear that Islamic extremists who promote and carry out their form of Jihad are as 

great a threat to moderate Muslims as they are to Christians, Jews 

and all American citizens.’’ So I think that is a good compliment to the objectivity of your 

film. 

Mr. EMERSON. Senator, if I might just add something. 

Senator SESSIONS. Yes, go ahead. 

Mr. EMERSON. That I just want to reemphasize what you just 

stated, that the film itself emphasized that the issue was not of 

Islam, but rather of Islamic militants. I think, as somebody who 

has investigated the 9/11 attack, if you will permit me just to provide a little context for understanding the degree of unprecedented 

danger and the degree to which U.S. law enforcement was unprepared to deal with 9/11. Because sleeper cells and those who are 

arrested after 9/11 were not arbitrarily selected because of the alphabet. 

There was a belief somehow they were connected, either they 

were on credit card applications, they were the recipients of telephone calls, there was some reason why they were picked up. It 

281

was not just an arbitrary decision because of somebody’s fanciful 

whims. The problem was that most of the hijackers from 9/11 

maintained an operational security that was unprecedented; in 

other words, they did not call each other. The phone calls that were 

made, in fact— Senator SESSIONS. They had only minimal contact between each 

other. 

Mr. EMERSON. —between each other, so it was impossible to 

prove— Senator SESSIONS. To make it more difficult to investigate. 

Mr. EMERSON. In fact, one of the reasons why we now know 

today who the hijackers were on the plane was because of a 

stewardess’s call on one of the planes identifying the hijackers and 

the seats that they had, and that then led the investigators to unravel the network. And a lot of people were picked up because of 

the fact that there was some connection, even though it may be 

later proved that it was not as solid, but most of these—Hani 

Hanjour came here in 1991. These people buried themselves into 

the American society. They never did anything illegal. Mohamed 

Atta, the ringleader, he was caught for speeding. He was given a 

summons for speeding. But, you know, if he had been arrested, 

what good? He could not have been held, and he was the ringleader 

of the whole plot that killed 4,000 people. 

So I believe that this is the setting that we are now facing. It 

is a new ballgame. I am not here to justify abuses of the system 

at all, but I am here to tell you that having investigated 9/11, 

working with investigators in law enforcement and understanding 

the pressures, and understanding the dilemma they faced, it was 

absolutely a magnitude that they had never faced before, precisely 

because these people learned from previous terrorist attacks not to 

have any connection with one another, to keep a low profile, not 

to stand out. 

Therefore, even if you look at the 21st hijacker, Moussaoui from 

Minnesota, the odds are people know or believe, in law enforcement, that he most likely was going to be on a fifth plane. Nobody 

can prove this. The hijackers were not 4 for 4 on 9/11. They were 

more like 4 for 6, 4 for 7. Now can anyone prove this? Absolutely 

not, at this point. Do they believe it? Absolutely. That means there 

may be 30, 40, 50 other hijackers out there in American society 

that have not been apprehended or that were picked up in this 

group and that are being forcibly held. And one good byproduct, 

even though there are bad byproducts, is that they cannot carry 

out a terrorist attack now. 

Senator FEINGOLD. We will start another round. 

Senator SESSIONS. Mr. Chairman, I would just offer this letter 

from Senators Wyden and Brownback on film. 

Senator FEINGOLD. Without objection. 

Senator SESSIONS. And would note that three of the hijackers 

were, in fact, student overstays—people who came legitimately as 

a student, but had overstayed their stay. 

Senator FEINGOLD. Thank you, Senator Sessions. We will start 

another round. 

I certainly understand the argument that this is a new ball 

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usual proposals from the administration. But the problem I have 

is first we have to determine whether the arguments that are being 

made about the system prior to September 11th and the current 

law are even valid. There is a sort of mixing and matching going 

on here. As Ms. Strossen pointed out, the Attorney General simply 

asserted that he was required by law not to give out the information. That is simply not true. And I don’t really understand why 

that was asserted. 

The same goes for this obvious contradiction with the Attorney 

General saying on one day that he couldn’t release any names because it would help Mr. bin Laden, but that everybody was free to 

release their own identities. It doesn’t add up. 

And so these aren’t statements that are insensitive to the new 

world we live in because the arguments are based on what the current law was and the practice has been as a foundation for justifying these new changes. So that concerns me. 

In that spirit, I would like to follow up with regard to what Senator Sessions said with Mr. Goldstein and Mr. Boyle. Aren’t immigration charges generally public, Mr. Boyle? 

Mr. BOYLE. Yes. They are read in open court. They are available. 

All the names and the alien numbers are posted on the wall of the 

immigration court ever morning, and you can dial into an 800-number system. 

Senator FEINGOLD. And so the hearings are listed in the courthouse? 

Mr. BOYLE. That is right. 

Senator FEINGOLD. And, Mr. Goldstein, would you agree with 

that? 

Mr. GOLDSTEIN. I would. 

Senator FEINGOLD. And let me ask each of you, so what we are 

asking for here is not unusual at all, is it? What we have asked 

for in our letters—

Mr. BOYLE. Normally it is open. Normally the hearings are open. 

Senator FEINGOLD. Is that correct? 

Mr. GOLDSTEIN. Not only are the hearings open, but the idea 

that someone who has retained counsel, who is constantly communicating with both agents and Department of Justice officials, seeking the whereabouts of their counsel and an opportunity to consult 

with them, that goes beyond whether something is secret or nonsecret. It simply defies logic or common sense that this simply 

slipped through the cracks, that these were terrible—no question 

they were terrible times, and I understand that they often require 

extraordinary remedies. But the point is all of us understand that 

providing counsel would have been a benefit to everyone, and yet 

we were stonewalled from the get-go for a considerable period of 

time, which to me in my experience in this one case looked like an 

orchestrated effort that was a—there was a commonality to it. 

Each of the agents, each of the agencies and the U.S. Attorneys all 

told us that they would be unable to tell us where our client was 

or why he was being held, even though everyone now knows they 

had that knowledge at their fingertips. 

Ms. STROSSEN. Could I add something, Senator Feingold? 

Senator FEINGOLD. Yes, Ms. Strossen. 

283

Ms. STROSSEN. Because our Immigration Rights Project lawyers 

and those that they work with around the country are reporting 

similar problems. And in the earlier round of questions, you asked 

what steps could be suggested to facilitate access to counsel, to 

which Senator Sessions agreed. I guess we are all lawyers. We all 

support the rule of law and the positive value of having access to 

lawyers. And in the ACLU’s written testimony, we do affirmatively 

suggest that the Justice Department can and should take steps to 

make sure that pro bono attorneys and legal organizations such as 

the ACLU which are willing to counsel these individuals free of 

charge be given access, and that it be the responsibility of the Justice Department to make sure that at all these scattered facilities 

where these individuals are being held that these obstacles are removed. 

Senator FEINGOLD. Thank you, Ms. Strossen. 

Mr. Boyle, we do not yet know the identities of the people who 

are being detained on immigration charges, although from the information that has been released, we can be pretty sure that the 

vast majority are being held on minor immigration violations, such 

as overstaying their visas, and that there is no evidence that more 

than a small number of these detainees have any connection with 

any terrorist organization or any knowledge about terrorist activities or the September 11th attack. 

Now, the Attorney General has often defended these detentions 

by pointing out that these people violated the immigration laws of 

the United States. Your client, Mr. Al–Maqtari, was charged with 

overstaying a tourist visa, as we have discussed. 

Can you tell me—and, again, getting at the practice at least prior 

to September 11th—what happened when someone was discovered 

to have overstayed their visa or committed some other minor immigration violation? Were they always deported? Can you explain the 

gravity of these violations, how they can be corrected, and whether 

you agree with the administration’s position that someone who violates the law should not remain in the United States? 

Mr. BOYLE. Before September 11th and in non–Arab cases now, 

there is still a lot more discretion, and particularly in terms of detention. Non-criminals were almost never and are almost never, 

outside of these communities, detained. They are almost always released on their own recognizance or with a very low bond. And the 

administration did—and I hope will in the future—exercise more 

discretion about whether people would actually be charged based 

on a variety of factors about their circumstances, whether relief 

might be available in the future if they are married to a permanent 

resident and that application is on a waiting list and will ripen. 

There certainly was a lot of discretion, and it was exercised far 

more freely and is exercised far more freely outside of the communities that seem to be being targeted now. 

Senator FEINGOLD. Senator Sessions? 

Senator SESSIONS. With regard to the 5,000 people that have 

supposedly been requested—or are being requested for interviews, 

I don’t consider that a round-up. I don’t consider that a detention. 

I don’t consider that a violation of their rights. They are simply 

asked by letter or in person, presumably, would they be willing to 

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cumstances. According to the New York Times article, I guess 

today, reporting from Detroit on interviews that occurred, ‘‘Two 

people who attended a half-dozen interviews today said the conversations were professional, non-threatening and surprisingly 

short.’’ They were asked a number of questions, such as: Are you 

aware of people who were celebrating? They were asked if they 

were aware of a terrorist group or if they knew of anybody who was 

planning anything. They were asked if they had ever been part of 

the armed conflict in their country, and questions of that sort. 

So it seems to me that if you have got an attack coming at this 

country from Liechtenstein, you would want to interview people 

who had come from Liechtenstein. If we have got people who are 

coming from a series of countries, as we do in this circumstance, 

for the most part, then those are good people to interview. And 

maybe their very families have been victims of oppression. Maybe 

their very families fled to the United States because of some fundamentalist oppression that they served in their country. Maybe 

they left because women were mistreated in their country and they 

know some things. And somebody calls and asks them about it, and 

maybe they say, I can tell you this guy down the street here has 

been into this stuff big-time heavy, I would look at him if I were 

you. 

Now, what is wrong with asking somebody if they have any such 

information as that? And there is no allegation or contention that 

they could not refuse to answer. 

And, Nadine, with all due respect, they are not entitled to Miranda warnings and should not be given them. They are not being 

brought into custody— Ms. STROSSEN. I didn’t say that they were—

Senator SESSIONS. Well, you said they were instructed not to give 

Miranda warnings, and well they should not have been given Miranda because Miranda is not required to interview somebody in 

a voluntary interview. 

So I think this big deal has been exaggerated beyond the level 

of importance given to it, and we might hope in these interviews 

that we might come up with a bit of information here or there that 

could save somebody’s liberty or life in this country in a way that 

would be consistent with all our laws. And certainly I would think 

it would be. 

So you agree that they don’t have to give Miranda warnings? 

Well, why did you make such a big deal about it? 

Ms. STROSSEN. I think what is noteworthy, if I may answer, Senator Sessions, is that there was an affirmative effort to instruct in 

the guidelines that the Miranda warning need not be given. There 

was also an absence of an affirmative instruction to inform these 

individuals that they had a right not to answer particular questions and that they had a right to seek counsel. 

So we think that there was an effort to take maximum advantage of people’s ignorance of their legal rights, and, you know, if 

I may say so, the Michigan interviews were different from those 

that are taking place consistent with the Justice Department’s 

guidelines. According to the New York Times article I read recently, the local police there decided not to follow the Justice Department’s form letter precisely because they thought the tone was 

285

too coercive, and, therefore, not only was negative in terms of individual freedom but also was counter to the effort to get voluntary 

cooperation. 

Senator SESSIONS. Well, I don’t think they are required to give 

that warning. I think the advisers who asked them to conduct the 

interview should have told them up front whether Miranda was required or not. I think that was the right thing. 

I yield back. 

Senator FEINGOLD. Senator Sessions, thank you. 

Let me start another round. It seems to me—and certainly others 

on the panel have suggested this today—that the instructions that 

have gone out to Federal investigators who will conduct interviews 

of the 5,000 Arab and Muslim men and the new Responsible Cooperators Program sort of creates an extraordinarily high-risk 

choice for some immigrants. On the one hand, the Government is 

saying we will help you with becoming a citizen and maybe overlook your visa violation if you come forward and have reliable and 

useful information. On the other hand, the people conducting the 

interviews are told to call the INS if they suspect that a particular 

individual is in violation of the immigration laws. So if you are a 

person with an immigration problem but you think you have some 

information that might be helpful to our Government, you have got 

a choice. You can keep the information to yourself and try not to 

make yourself known to the Government, or you can sort of spin 

the roulette wheel and go in and talk to the FBI. If you are lucky, 

you might get citizenship, but if you are not, not only don’t you get 

citizenship but you will probably be detained for extra weeks or 

months and then deported. 

If the Justice Department were really serious about trying to get 

people from these communities to cooperate with the investigations, wouldn’t it take steps to assure people that if they come forward and answer questions that they will not be picked up on immigration violations? I guess I would be interested in Ms. 

Strossen’s comments on that. 

Ms. STROSSEN. I think that is a very good idea, and this is why 

I think the Michigan kind of approach of voluntarism is a good 

idea, although it is inconsistent to some extent with the Justice Department guidelines which right now do expressly instruct that 

there should be investigation about possible INS violations and 

that it is up to the INS to determine whether somebody should be 

detained. And as we have seen, there certainly seems to be a presumption in favor of detention. 

I have also seen the instructions that the Attorney General sent 

out amplifying on this voluntary cooperation program, and they are 

much vaguer than the prior instructions, simply saying that it is 

a discretionary decision to be made ultimately in the Attorney General’s sole discretion whether somebody has given sufficiently reliable and crucial information. I think this is very strong language, 

making it hard to be entitled to these waivers of deportation and 

other benefits. And it is only something that the Attorney General 

has to consider. So if we really want to follow along the kind of 

community policing, cooperative relations—building with these 

communities—which could well be good sources of information—

this is why law enforcement officials are saying this is the wrong 

286

way to do it. Let’s really, really be voluntary, and as Senator Feingold suggested and our written testimony suggests, let the Attorney General issue guidelines with the full force of law that would 

give a legally enforceable assurance that if you come forward, you 

are not going to be pursued on your technical immigration violations. 

Senator SESSIONS. Ms. Toensing, I would be interested in your 

reaction to this as a former law enforcement official. How can you 

get people to cooperate and tell what they know to you if you are 

sort of holding the hammer of detention over their heads? 

Ms. TOENSING. Well, let me just tell you, Senator Feingold, my 

experience back in the mid–1980s when terrorism really first started focusing on Americans, but it was mostly abroad, and so we 

were looking at it differently. I thought that the way we controlled 

our borders and the way we controlled our passports, the State Department, an issue somebody ought to look into at some point, because they were so easily copied and fraudulent passports were so 

easily made, and there were ways, there were methods, technical 

methods—I am sure there are even better ones today—that would 

have prevented that. That was one of the issues, by the way, in 

some of the 19 that made it to our country, different passports and 

stolen passports and so forth. So my criticism comes more from 

that we did not carry out our immigration laws in the past and left 

many people here who were illegal and passed the violations. 

Now, when we are talking about today and how do we bring people forward, one of the first things I want to say is to commend the 

Arab newspapers in Dearborn, a former hometown of mine, who 

are now saying to the community it is time to come forward and 

it is time to cooperate. I thought it was very sad, as I have heard 

past stories about the Muslim community and some kind of an excuse for them to feel alienated from our Government. I think, Nadine, it is a culture we can’t accept, that we have to say you are 

here in the United States, and in our country we have a culture 

that says you work with the Government if a crime this heinous 

took place. 

I mean, there are a lot of Muslim countries that don’t want 

women to go to school. We would certainly never accept that part 

of the culture here in the United States. I think there are other aspects, very positive, from our country that our Government is not 

to be hated. It is always to be challenged, but certainly not to be 

hated. 

Senator FEINGOLD. I appreciate that statement, but what about 

my question, which is: How do you get people to cooperate if you 

are holding the hammer of detention over their heads? 

Ms. TOENSING. Well, I don’t think that it is only the hammer of 

detention. In fact, the carrot came out, and the carrot was if you 

come in and you talk with us and tell us everything that you know, 

we can see to it—we can ignore your violations. It is real easy for 

us to sit here in theory and talk about this stuff, but when you are 

sitting there and you are the prosecutor or the Government official 

that has to make the call about whether someone really came forward or just came in and said, hey, I got some information about 

my neighbor, but I don’t know much, okay, I came forward, now 

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ing forward and giving information is just not—you know, that is 

an art, not a science. 

Senator FEINGOLD. Thanks for that answer. 

Mr. Boyle, as someone who represents immigrants, what do you 

think of this investigative technique? How would you advise a client who came to you and said I know something that might be 

helpful but I am in violation of my visa? 

Mr. BOYLE. Oh, boy, I would feel real bad. But I think you have 

to tell people to cooperate, but I think obviously if you want to encourage cooperation, you have an environment where people don’t 

feel like they will then be turned around and thrown away. Historically, the S program has had a lot of problems, and in the current 

context, I think it has even more problems. 

Obviously I have tried to work with clients in the past. I have 

had some clients who have, in fact, after much struggle, actually 

achieved permanent residence after they cooperated in immigration 

investigations. But, boy, it was really a fight. And I think if you 

make it an atmosphere where people don’t think it is a fight, where 

they don’t think they are putting themselves at risk of deportation, 

but where they know they will be left alone if they are cooperative, 

but do no harm, and where they will be rewarded if they provide 

really good information, I think that is better. But I think it is 

hard to come out with that today when the last 2 months have people calling every day scared to death, perfectly innocent people, 

honestly, even of the ethnic groups who aren’t targeted, thinking 

that, you know, they are really in trouble. So I think it is more effective if it is in the context of making people really feel part of the 

system and part of the United States, not just economically but 

also in this bigger sense. 

Senator FEINGOLD. Thank you. 

Senator Sessions? 

Senator SESSIONS. Well, I don’t think any nation in the world—

maybe you could name one or two that have any more lenient immigration laws than we do. We are very generous to people who 

come here, but they do come here, don’t they, Mr. Boyle, by permission under certain limitations that people are required to adhere 

to? 

Mr. BOYLE. Absolutely, Senator. I am just saying—I am sorry. 

Absolutely. I don’t want to—

Senator SESSIONS. I guess I am saying that to state the obvious, 

but what I don’t understand is the complaint about the Attorney 

General’s offer that if people come in and cooperate, we are not 

going to prosecute them. We are going to give them a break. Now, 

what is wrong with that? Why would somebody come forward with 

information on a terrorist if he thought he was going to be deported? What the Attorney General is saying is, as I understand 

it—or am I missing this, Ms. Toensing?—that if you come forward 

and you have got valuable information, we will work with you to 

try to protect you. And isn’t it also a fact based on your prosecutorial experience that if somebody gave information on a terrorist 

person in America, that their very lives could be at stake, their 

families’ lives could be at stake, and they would want to know the 

Government was going to do something to help them? 

288

Ms. TOENSING. Well, yes, we have been through that a lot, bringing people in and giving them—putting them on the witness protection program, which is certainly a whole other issue. 

I am trying to understand. I think it is that there is not certainty, that they say— Senator SESSIONS. They think they are going to double-cross 

them? Is that it? 

Ms. TOENSING. Yes, if you come forward and that is automatic, 

and that is why I gave my answer that, who knows, if you just 

come in and say my neighbor I think is a bad person and that is 

all you say, that is not really coming forward. And so, you know, 

our days of Queen for a Day where you came in and you had to 

give your proffer of what you were going to tell to see if it was really valid information perhaps applies here. I think it is very difficult 

for someone to just come forward to measure before you know what 

it is. We never did that with guilty pleas or with cooperation in law 

enforcement. We had to have some measure of what the information was. 

Senator SESSIONS. And if the person came in and said I have got 

information that is of value, let me stay here, and it is not valuable 

and/or it is false, then they shouldn’t get the benefit of that bargain. 

Ms. TOENSING. And I think that is what the problem is here because the people don’t know when the carrot or the stick is going 

to apply. But I say you can’t do that with any certainty. 

Senator SESSIONS. Well, in my experience of over 15 years of 

prosecuting, there is very little incentive for a person who is involved in a criminal activity or knows about that criminal activity 

to come forward and tell about it. He is going to make whoever his 

buddy was very mad. He is going to be hauled into court. He might 

get charged or she might get charged with something also. 

So the question, I guess, is the threat of prosecution is the best 

way and the most common way, is it not—at least in my experience 

it is, and I will ask you, Ms. Toensing. In your experience, the 

threat of prosecution and the possibility of some leniency is what 

overcomes a person’s self-interest not to talk. 

Ms. TOENSING. We have got both a carrot and a stick out there, 

and some people respond better to the carrot and some to the stick. 

We all know that who have raised children. Sometimes it just depends on the day. 

Senator SESSIONS. Criminals respond best to the stick. Some 

really in this circumstance I think should very well be troubled by 

what they know and would like to get that information to the authorities, but might be afraid, Mr. Emerson, that if they do, it will 

get out and their family could be at risk. Is that a realistic statement I just made in your experience? 

Mr. EMERSON. Absolutely. I mean, if you look at the people that 

have either offered information or have been prevailed upon to 

offer information, you know, there are some examples, like Ahmed 

Ressam, who came in from Vancouver into Seattle, and for a good 

year and a half, he did not reveal the intended target of his plot, 

and the ongoing operatives in his cell were still out in the United 

States, and he had plotted to bomb LAX. And it was only because 

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hood that it could be reduced that he decided to say I am going to 

cooperate right now. And he has requested protection as well for 

his family. 

Senator SESSIONS. I think that is a common thing. Maybe I misunderstood your concerns on that, but I really think the Attorney 

General needed to send a signal to a community, many of which 

may not be that familiar with Federal procedures, that if they do 

come forward and help the United States, we will try to help you. 

That is the way I interpreted it. It may not get many people to 

come forward, but maybe one or two could be of some value. So I 

think it was a good statement. 

Senator FEINGOLD. Well, I think you are correct in part. There 

is no certainty that you will be treated well if you cooperate, as has 

been pointed out. What the Attorney General has done is given 

himself discretion to help people out if they give, quote, reliable 

and useful information. But the problem is that at the same time 

he has given instructions to the FBI to refer people to interrogate 

to the INS if they have visa violations. So the conversation here 

has been sometimes a stick works, sometimes a carrot works. Here 

really what happens is you have the carrot being undermined by 

the stick. It is sort of simultaneous, and that is the problem with 

it, in my mind, at least the nature of the concern. But I am certainly interested in the discussion. 

I just have a couple more questions. You have been very patient, 

so we will try to come to a conclusion, depending on what Senator 

Sessions would like to do. 

Let me ask you, Ms. Strossen, all of the 5,000 men that the Justice Department wants to question are men between the ages of 18 

and 33. Is there any conclusion to be drawn from this fact other 

than the Department must be seeking to capture terrorists in this 

dragnet as opposed to actually seeking information? Wouldn’t 

women from these countries and older people from those countries 

be as likely or at least somewhat likely to have useful information 

for an investigation as these men if that is really what it is for? 

Ms. STROSSEN. You are absolutely right, Senator Feingold, and, 

in fact, if you look at the questions themselves, that inference is 

reinforced because many of the questions are the kinds of questions 

that would not be asked of witnesses but that would be asked of 

potential suspects. And I think that is why this half-carrot and 

half-stick is so flawed and why we said it is more like a sting operation, because you are offering the carrot and then when somebody 

comes forward to bite the carrot, you hit them with the stick. 

Also, the trust has so far been eroded already in the Arab American community and the Muslim community. If I might, I would 

like to point out a statement that was released by the American 

Arab Anti–Discrimination Committee which pointed out such a 

basic problem—and I am quoting now from a press released dated 

November 29th—that if Mr. Ashcroft had consulted with anyone familiar with the Arabic language, he would have known that the 

word ‘‘cooperator’’ has an extremely negative connotation that may 

deter many from participating in a program such as this. And then 

there are other spokespeople that go on to say that the trust has 

already been so undermined by the programs that we have been 

criticizing here this afternoon that it is a little bit too late to get 

290

people to trust, especially with these vague standards that simply 

give the Attorney General discretion, and even the standards themselves on their face are discretionary: reliable information, important information, crucial information. 

So I think the Government is sending such mixed signals in so 

many different ways, you know, saying—the letter itself says you 

are not a suspect, but then, on the other hand, if they really are 

seeking the full community information and support, why are they 

limiting it to people who only happen to share certain societal 

group characteristics that are shared by the hijackers that have 

been identified? And that is why one of the other critiques is that 

this is a form of profiling, which is doubly flawed. Justice is violating the rights of completely innocent people. It is also a completely ineffective method of law enforcement, since you are using 

the dragnet instead of honing in on people’s behavioral characteristics that give rise to individualized suspicion. 

Senator FEINGOLD. I think that is a very valuable answer, and 

I am very glad that issue came out in the hearing. 

Let me ask you again, Ms. Strossen, another question. Two separate public opinion polls released last week appear to show that a 

majority of Americans support the steps taken by President Bush 

to combat terrorism, but have little concern with how these steps 

may infringe the rights of U.S. citizens or non-citizens. In a letter 

to the editor in yesterday’s Washington Post, Ali Ayub made the 

astute observation that American citizens are willing to sacrifice 

civil liberties in the fight against terrorism, but which Americans 

are doing the sacrificing? It turns out that Mr. Ayub, who is an 

American citizen, has a name that is similar to—not any of the hijackers, but an individual arrested with suspected links to terrorism. Mr. Ayub has had to endure interviews at home and work 

by the FBI, the FBI’s investigation of him through contact of his 

neighbors, friends, and a broker, and numerous freezing of his 

bank accounts without any prior notice. 

He concludes by poignantly noting that what scares him even 

more is that he is an American citizen and that, while he is not 

in jail, joining the hundreds of detainees we have talked about 

today, the only crime he is guilty of is that his name is Ali Ayub, 

not Joe Smith. So I would like to submit, without objection, Mr. 

Ayub’s letter to the editor for the record. 

Unfortunately, we know that his case is not an isolated case. 

There have been other similar missteps by the FBI or other Federal officials and investigating people, including United States citizens, who have no ties to terrorism whatsoever. 

I would like you to respond to this problem, that at least according to these polls—and I know very well, as Senator Sessions does, 

that polls can depend so much on how the question is asked. But 

the polls appear to suggest that many people are quick to support 

this abridgment of rights as long as they are not the ones who are 

actually bearing the burden. How do you react to that? 

Ms. STROSSEN. Well, I think perhaps a common human reaction 

is if you think the measure is going to benefit you and not hurt 

you, then you will support it. The pain goes to somebody else. And 

that is why I think it is critically important that we explain to the 

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ment community themselves, that maybe these measures are not 

likely in fact to benefit you, that they are as flawed, from a national security point of view, as they are flawed from a civil liberties point of view. 

And as for the second part of the equation, that these measures 

are not going to burden Americans, I think that is unfortunately 

an illusion, as the example that you have given, Senator Feingold, 

has already shown. So many of the rationales that the Justice Department is putting forth for measures now that are targeted only 

at noncitizens, but also the same rationale could equally well apply 

to an American citizen. 

To use the military tribunal example, President Bush has relied 

to justify that tribunal on a Supreme Court decision that expressly 

said that the authority to constitute these tribunals did not depend 

on whether the person being tried was or was not a citizen. You 

know, it is the reason why the ACLU has always insisted on defending all fundamental freedoms for everyone, because we know 

that once the government gets the power to violate somebody’s 

right, it inevitably is going to use that very same power against the 

right of somebody else. 

Senator FEINGOLD. Thank you. 

Senator Sessions? 

Senator SESSIONS. Well, I think you make an interesting comment, that President Bush’s Executive Order was more limited 

than the Supreme Court gave him the power to issue it, but it did 

nevertheless say that before anyone could be tried, even a noncitizen, and that is the only ones it applied to, before they could be 

tried in a military tribunal, they have to be associated with a terrorist, international terrorist organization or al Qaeda. In fact the 

Supreme Court does seem to indicate that even citizens who are involved in a warlike attack on the United States can be tried in a 

military tribunal, which President Bush chose not to do that. 

No one here—and the polls are not asking the American people 

to affirm an improper and erroneous arrest of Mr. Goldstein’s client 

perhaps or Ali Ayoub improperly. The American people do not support erroneous carrying out of law enforcement. They do not support that. 

But what I think is missing here, and the error that we are 

about, is we are characterizing things that are perfectly legitimate 

established laws of the United States is somehow in violation of 

civil liberties. To interview a potential witness, how many witnesses did we interview in the Oklahoma City bombing case? Thousands, I am sure. So interviewing witnesses is not a violation of 

civil rights, particularly when you are not compelled to give an answer. And many of the other matters that have been asserted as 

somehow undermining American law, I think are great exaggerations. 

So the extent to which our government is not adhering to the 

law, I think they need to be held to account, and it does appear 

that in the rush after these events, some events occurred that were 

not justified, and I would apologize to you if you were wrongly held 

and your client, but it do not believe that the government should 

provide, in the case of a terrorist attack against America, more 

rights to defendants than we give to routine criminal defendants in 

292

America today. And they are entitled to get their lawyer, they are 

entitled to the day in court. They can call their mama or they can 

call their lawyer, and they can tell whoever they want to they are 

arrested, but the Attorney General is not required to announce to 

the world they have been arrested. I do not think that violates 

their rights. 

So I think we are in pretty good shape all things considered. The 

Attorney General and the FBI are challenged tremendously. We expect them to protect us as well as we expect the special forces in 

the Marines to be protecting us. And we want to hold them to account, make sure they follow the law, but at the same time, we 

need to understand the seriousness of their task and the challenge 

they face and the great protections that law gives them. 

Mr. Chairman, let me just say, you and I may disagree on this, 

but I know you deeply believe in liberty in America. I know you 

care about that. I believe it is healthy, so let us put it all put on 

the table right here. Ms. Strossen and Boyle and all, you have 

made some—Mr. Goldstein—your points effectively. We ought to 

listen to what you say, and try to make the law work correctly. So 

I think it is healthy to do this. I just do not think the Attorney 

General is going nearly as awry as you might think. 

Senator FEINGOLD. Well, I appreciate that very much and your 

participation. I would say it is a little more than healthy. It is not 

like just a good walk in the morning. It is essential that we have 

these sorts of hearings and that they be as extensive as this, and 

I really do admire your willingness to participate throughout the 

entire hearing. 

Let me just say that the purpose here is not to characterize the 

activities of the Attorney General or the President as somehow inappropriate or something that could never be done. The problem is 

though, is that in each of these areas, an example is taken of something that is done in very limited circumstances, and then used to 

justify a very substantial change in the scope or the way in which 

it is done. For example, the military tribunals. Somebody just says, 

well, we have had military tribunals before; what is the big deal? 

That is not the whole story. The whole story is exactly what is the 

basis for it? What is the nature of the Executive Order? 

Maybe it is the case, as Ms. Toensing suggests, that on occasion 

in certain circumstances, rare I hope, it is okay to listen to somebody’s attorney-client conversation. My suspicion is that that is incredibly narrow, and that basically the American people are being 

told, why are you getting upset about that? It is perfectly appropriate to do that, and it gets broadened in that way. 

And the same thing goes for the detainees. I mean I am not 

against the idea of military tribunals in all circumstances. I am not 

against the idea of detaining people including in this case. But 

when we are not given the information that simply should be given 

in a situation like this so we can analyze what is going on, how 

do we know whether or not what is being done now is in the traditional way in which these matters are handled, or whether something entirely different is being done? And the same goes for the 

interviewing of 5,000 people, who happen to be all men between 

the ages of 18 and 33, even though the justification is that we are 

293

trying to just get information, we are not trying to specifically identify the terrorists. 

So I would just say to the Senator, the problem here is that these 

are potentially enormous changes of scope and in the way these 

procedures are used, even though they may have been permitted in 

certain circumstances in the past, and that to me, is where we are 

at in the discussion of this at this time. And with that— Senator SESSIONS. Could I— Senator FEINGOLD. Senator Sessions? 

Senator SESSIONS. Senator Hatch had wanted me to ask a question. I would, just based on—well, I will not get into that. Let me 

just ask the questions to Mr. Ali Al–Maqtari that Senator Hatch 

would like to ask. 

You came here under a non-immigrant visa; is that correct, to 

the United States? 

Mr. AL-MAQTARI. Tourist visa. 

Senator SESSIONS. And there was a limit on the time that you 

were allowed to stay in the United States? 

Mr. AL-MAQTARI. Yes. 

Senator SESSIONS. And you knew that you were here illegally? 

Mr. AL-MAQTARI. Yes. 

Senator SESSIONS. You knew that your time had expired? 

Mr. AL-MAQTARI. I applied for extension before my visa expired. 

Senator SESSIONS. But your time had expired and you had not 

been approved additional time? 

Mr. AL-MAQTARI. But they did not say that they refuse my application. They just give me a letter from INS saying we are discussing your file, and between 60 and 120 days you will hear from 

us an answer. After 120 days they give me another letter. They 

say, we discussed your file, and we want you to send us this and 

this and this, bank statement, whether you will leave, your situation. And they give me time until August 15 to send them these 

papers. Before August 15 I was married to my wife, so I think I 

was waiting for the answer. So I think I am—

Senator SESSIONS. I can understand your feeling, but I think 

technically you were not approved for continuance staying in. But 

let me ask you this: is it not a fact that the day after the attack 

and the day you were arrested, you were found with box cutters? 

Mr. AL-MAQTARI. Yes. 

Senator SESSIONS. I think that may explain some of the concern 

on behalf of law enforcement. It may not justify improper legal activity, but perhaps that showed some reason for the intensity of interest that there may have been here. 

Senator FEINGOLD. Mr. Al–Maqtari, why did you have box cutters? 

Mr. AL-MAQTARI. Okay. I had one box cutter, not two. One of 

mine—the other one is my wife. My uncle here has a grocery store, 

and sometimes I was helping them there, so we use these box cutters to—you know, it is a grocery store. And when we decided to 

move to Kentucky, we was preparing our stuff, so we used these 

box cutter to prepare our stuff. And then we finished preparing our 

stuff, and I put the box cutter in the car. So I did not know until 

the day before my hearing, I did not know that carrying box cutter, 

it is small, dangerous carrying RBG or—

294

Senator FEINGOLD. Good. I wanted to get that on the record. 

I want to thank all of our witnesses and Senator Sessions very 

much. We have a vote on again. I had hoped to stop and chat with 

each of you and thank you personally, but I have to run, but 

thanks so much. 

At this point we will include the statements of Senators Thurmond and Kennedy in the record. 

[The prepared statements of Senators Thurmond and Kennedy 

follow:]

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

CAROLINA

Mr. Chairman: 

Thank you for holding this important hearing on the detention of individuals suspected of links to terrorist organizations. I take seriously this committee’s responsibility for overseeing the Justice Department, and we should ensure that the government’s actions are in accordance with the Constitution. We must seek to formulate 

law enforcement initiatives that will be rigorous, giving DOJ the best possible opportunity of bringing to justice those associated with the terrorist attacks. At the 

same time, we must not compromise our Nation’s historical commitment to due 

process and civil liberties. 

I believe that the Bush Administration’s detention policy is not only necessary for 

our national security, but it is also a legitimate use of powers under the Constitution. Two aspects of the detention policy have been highly criticized: the detentions 

themselves and the lack of public information released on detainees. Today, we will 

hear detainees’ have access to lawyers and are treated properly. However, we must 

not allow isolated incidents to lead us to the conclusion that the government is 

shamelessly violating the civil rights of detainees. 

Congress and the Administration have worked together to fashion a sensible policy on the detention of those charged with immigration violations or criminal laws. 

Once a person is taken into custody, the USA PATRIOT Act provides that the Attorney General may certify that he has reasonable grounds to believe that someone is 

a terrorist or security threat. The Attorney General then has seven days to charge 

the alien with an immigration or criminal violation. Upon the expiration of seven 

days, he must release the alien or charge him with a violation of law. The safeguard 

to this procedure is review in Federal court. 

The Attorney General is using material witness warrants to hold all other detainees. Some critics question the practice of holding people as material witnesses, but 

the government must balance its need for crucial information with the liberty interests of detainees. Furthermore, current law allows for the detention of material witnesses for a ‘‘reasonable period of time’’ under 18 U.S.C. § 3144. It is important to 

remember that the government’s power of detention is not unchecked. Detainees 

have recourse to review by Federal courts. 

Congress should also give deference to the President’s powers as Commander-inChief. The detention of suspects and witnesses serves not only law enforcement objectives by national security objectives as well. We are involved in a war against 

terrorism, and we should be sensitive to the national security concerns regarding 

the detentions. In fact, the Supreme Court has acknowledged that there may be circumstances where national security concerns call for deference to the executive 

branch’s use of detentions. Zadvydas v. Davis, 121 S. Ct. 2492 (2001). 

Some critics have also raised concerns about the Department of Justice’s failure 

to release extensive details regarding detainees. As former Attorney General Barr 

indicated in his testimony before this committee last week, the Supreme Court has 

never interpreted the Constitution to require that all details of a law enforcement 

investigation be disclosed. For example, grand jury proceedings are kept secret so 

that the integrity of a criminal investigation is not tarnished. And even more relevant, affidavits in support of arrest, material witness warrants, and indictments 

are commonly filed with the court under seal if their disclosure would compromise 

an investigation. 

Under current circumstances, detailed information about the detainees could provide crucial information to the cells of the al Qaida terrorist network. If terrorist 

cells operating in this Country were able to determine how their movements were 

being detected, they would adjust their operations in order to avoid detection. We 

must remember that we are at war, and the United States is still vulnerable to terVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00300 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
295

rorist attacks. The United States government has a legitimate need for secrecy in 

its effort to disrupt the functioning of al Qaida. 

There is a misconception that the identities of all charged persons is secret. This 

is not so. According to Assistant Attorney General Michael Chertoff’s testimony before this committee last week, the identity of every person arrested on a criminal 

charge is public information. Additionally, the government is not preventing a detained individual from identifying himself. There is nothing to indicate that detainees are being held in secret. 

By not providing a list of detainees to the public, DOJ is actually protecting the 

privacy of the detainees. Because the detention itself is not secret, an individual detainee would not benefit from the publication of his name. In fact, a list could only 

serve to invade the privacy interests of the detainees by making their detention 

available to anyone. If such a list were published, there would surely be criticism 

that this list served no purpose but to smear the reputations of people caught up 

in the investigation. 

Mr. Chairman, I appreciate your commitment to ensuring that our Nation protect 

the civil liberties of those under investigation. Even though we are at war, we must 

not allow our Constitution to be trampled in the name of justice. We must pay close 

attention to the assertions of our witnesses today. However, we must keep in mind 

that Assistant Attorney General Chertoff testified that all detainees are being provided with access to counsel and the right to make phone calls to families and attorneys. With these safeguards, I believe that the detention policies of the Administration are beneficial tools in our war against terrorism.

STATEMENT OF HON. EDWARD M. K

fENNEDY, A U.S. SENATOR FROM THE STATE OF

MASSACHUSETTS

As we seek to deal with those responsible for the terrorist attacks of September 

11th, we must also uphold the fundamental civil liberties that our country stands 

for. 

Several of the Administration’s recent policies and actions raise serious questions 

about their impact on basic freedoms protected by the Constitution. The Department 

of Justice policy would allow the monitoring of privileged attorney-client communications—without judicial supervision, and without even a showing of misconduct 

by the attorney involved. Since September 11th, hundreds of people have been detained for a variety of reasons. Few appear to be linked to terrorist activities, but 

the Department has refused to disclose basic information about these detainees’

identity and the grounds for detention. The Department’s current questioning of 

5,000 legal immigrants—almost all of whom are Middle Eastern—has raised concerns by local police departments about racial profiling. 

I commend Chairman Feingold for holding today’s hearing on these important 

issues. As we pursue our goal of bringing the terrorists to justice, enhancing our 

security, and protecting fundamental civil liberties, it is imperative for the Administration and Congress to share information and work together—as we did in the 

weeks immediately following the attacks.

Senator FEINGOLD. Senator Sessions has asked that a newspaper 

article be placed in the record and we will include it at this point. 

The hearing is concluded. 

[Whereupon, at 4:43 p.m., the Committee was adjourned.] 

(297)

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

THURSDAY, DECEMBER 6, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The committee met, pursuant to notice, at 10:02 a.m., in Room 

SD–106, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kennedy, Kohl, Feinstein, Feingold, 

Schumer, Durbin, Cantwell, Edwards, Hatch, Thurmond, Grassley, 

Specter, Kyl, DeWine, Sessions, and McConnell. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I don’t want to cut off the press in any way 

here, but I would ask you to step back now, if we could. 

Just a couple of housekeeping things before we start. I am advised there will be roll call votes this morning. Attorney General 

Ashcroft is familiar with that, and first off, I thank the Attorney 

General for being, as he told me earlier, unsenatorial and arriving 

early, and I do appreciate that. 

What I think we would do, with Senator Hatch’s agreement, if 

we might, if a roll call starts, we will continue on with the questioning. And at some point, as the time goes down that first roll 

call, as one Senator finishes we will break and the Senators will 

go over so we can do that roll call, plus the next one, come back, 

and begin again with whoever is next in line. So hopefully we will 

be gone for only about 10 minutes, 12 minutes or so, and then just 

see what happens with the third roll call. I am trying to accommodate as many of you as I might. 

To the Attorney General, I would say I welcome you here. When 

you and I chatted on the phone yesterday, as you know, I called 

to thank you for coming and I appreciate it. And, of course, you 

served with almost everybody on this Committee, so you should feel 

at home. I appreciate the comments you made yesterday, as you 

were telling me just earlier, when asked about whether there 

should be some kind of a bipartisan panel to look at all these 

things, and you said, well, there is at least one, the one right here, 

on which you served with distinction for years. 

In the 12 weeks since the September 11th attacks, Americans in 

law enforcement have been working tirelessly to protect the public, 

298

to capture and thwart terrorists, and to bring them to justice. And 

for its part, Congress too has moved promptly on several fronts, including our expedited consideration and enactment of the anti-terrorism bill 2 months ago. 

Now, in the 2 months since your last appearance before this 

Committee, General, terrorism has also reached Congress’ doorstep. That is why we are meeting in this room today and not in 

the Hart Building, which remains closed. One of the two anthrax 

letters that came to the Hill went to, as you know, the Hart Building, and it was of such a powerful nature, that building is still 

closed. 

Last week, the Justice Department witness appearing before this 

Committee described Congress as a ‘‘full partner’’ in our Nation’s 

anti-terrorism efforts. That is the way the Founders and the Constitution intended it, and I appreciate Mr. Chertoff in saying that. 

The partnership of our two branches of Government working together produced an anti-terrorism bill that was actually better 

than either the executive branch or the legislative branch would 

have produced had they acted on their own. Also, because we acted 

together, we had greater confidence of the public in the result. 

America works best when all parts of our Government work together. 

As we continue our discussion of important and difficult questions about the means to be used in the fight against terrorism, let 

no one, friend or foe, make any mistake about what this discussion 

is. It is a principled discussion of policy approaches. It is a constructive assessment of the effectiveness of those approaches. It is 

undertaken by partners in our country’s effort against a common 

and terrible enemy. 

Tomorrow is the 60th anniversary of the attack on Pearl Harbor. 

Many have compared the galvanizing effect of that attack to that 

of the atrocities committed on September 11th. Well, today, just as 

60 years ago, Government at every level is under great pressure to 

act. Our system is intended to help make sure that what we do 

keeps us on a heading that achieves our goals while holding true 

to our constitutional principles. The Constitution does not need 

protection when its guarantees are popular, but it very much needs 

our protection when events tempt us to just this once go beyond the 

Constitution. 

The need for congressional oversight and vigilance is not, as 

some mistakenly describe it, ‘‘to protect terrorists.’’ It is to protect 

ourselves as Americans and protect our American freedoms that 

you and I and everybody in this room cherish so much. And every 

single American has a stake in protecting our freedoms. It is to 

make sure that we keep in sight at all times the line that separates 

tremendous Government power on the one hand and the rights and 

liberties of all Americans on the other hand. It is to make sure that 

our Government has good reason before snooping into our bank 

records, our tax returns, our e-mails, or before the Government listens in as we talk with our attorneys. It is to make sure that no 

one official, however well intentioned, decides when that line is to 

be crossed without good reason for that decision. 

Now, whether the administration’s recent actions are popular or 

unpopular at the moment, that is not the issue. As the oversight 

299

Committee for the Department of Justice, we accept our responsibility to examine them. That is our role under the Constitution. 

That is our duty. We are sworn to do that. We will not shrink from 

that duty. 

But so, too, is congressional oversight important in helping to 

maintain public confidence in our system of laws. In our society, 

unlike in so many other nations, when a judge issues an order, it 

is respected and carried out because the public has faith in our system and its laws. The division of power and the checks and balances built into our system help sustain and earn the public’s confidence in the actions taken by the Government. The consent of the 

governed that is at the heart of our democracy makes our laws effective and sustains our society. 

I commend Senator Schumer, the Chair of the Administrative 

Oversight and Courts Subcommittee, and Senator Feingold, the 

Chair of our Constitution Subcommittee, for holding their hearings 

earlier this week, for the very constructive contributions to those 

hearings by Senator Hatch and Senator Sessions and Senator Durbin and Senator Feinstein and others. That is in the finest tradition of our Senate and our country. 

During the past week of hearings and public debate, this oversight process already has contributed to clarifying the President’s 

Order to establish military tribunals. It now seems following these 

hearings that the President’s language that ostensibly suspends 

the writ of habeas corpus and the language providing for secret 

trials and the expansive sweep of the President’s November 13 

Order were not intended; instead the administration’s intention is 

to use procedural rules more like those in our courts and our courts 

martial. 

Over the last week it has become clear that, as written, the 

President’s Order outlines a process that is far different than our 

military system of justice. American military justice is the best in 

the world. It includes open trials and right to counsel and judicial 

review. The public can see what is happening. It also appears that 

the risks of pursuing ‘‘victor’s justice’’ are beginning to be understood more fully as the initial conception of that Order is clarified. 

And I commend the members of this Committee for their contribution to that process. 

Last week, Senator Specter wrote an article expressing his concern that the administration had not demonstrated the need for the 

President’s extraordinarily broad Order on military commissions. 

Others, Democrats, Republicans, moderates, conservatives, liberals, 

have expressed concern about the broad powers asserted by the administration and about the manner in which it asserted them—bypassing Congress and the court. But last Wednesday’s hearing allowed the Committee to hear firsthand from legal experts across 

the spectrum on these questions. 

Now, let me be very clear. There are circumstances where military tribunals are appropriate, and I agree with the constitutional 

experts and others who have testified before the Committee that 

military tribunals can have a role in the prosecution of the campaign against terrorism. But many issues remain how to proceed 

with such tribunals in the best interest of our national security, 

and ultimately the question is not only whether our Government 

300

has the right or the power to take certain actions and in certain 

ways, but whether the means we choose really protect our security. 

Defining those circumstances where military tribunals serve our 

national security interest is no easy task. Congress has contributions to make to this discussion, as we already have. To many, the 

constitutional requirement that military tribunals be authorized by 

Congress is clear. To others, it is not. To everyone, it should be beyond argument that such an authorization, carefully drawn by both 

branches of Government, would be helpful in resolving this doubt. 

It would give credibility to the use of military tribunals. Several 

members of the Committee of both parties have been crafting ideas 

for such an authorizing resolution to clarify these issues. 

Mr. Attorney General, when I have called you in the past on 

issues to work with us, you have. And so I invite you to work with 

members of the Committee in creating a consensus charter for tribunals. And I suspect the Armed Services Committee, several 

members of which are on this Committee, would want the same. 

It is never easy to raise questions about the conduct of the executive branch when our military forces are engaged in combat, even 

when those questions do not concern our military operations. The 

matters we are examining concern homeland security and our constitutional rights and preserving the limits on governmental authority that form the foundation of our constitutional democracy. 

These are questions that go to the heart of what America stands 

for, to its people and to the world, especially to show them what 

we are and what we do when we are put to the test, a test that 

we have been put to far more than most of us can remember. 

These are questions that we need to debate openly and thoughtfully. This Committee hopes to cast a light of reasoned public inquiry on the administration’s actions, especially on sweeping unilateral actions that might affect fundamental rights. Ultimately, 

taking a close look at the assertions of Government power is one 

of the best ways to preserve our freedom and our security. 

None of us in elective or appointive positions in Government has 

a monopoly of wisdom or of patriotism, and under our system, none 

of us has a monopoly on authority. 

The Framers of our Constitution had great confidence in George 

Washington. They didn’t expect him to abuse his power. But they 

did not entrust their liberty to his or to any Government’s good intentions. Instead they provided a system of checks and balances, 

including congressional oversight and judicial review and public 

scrutiny. This Committee will be vigilant in seeking to preserve 

those fundamentals of our American constitutional system. We can 

be both tough on terrorists and true to the Constitution. It is not 

an either/or choice. 

So I look forward to hearing from the Attorney General. He is 

a friend of each and every one of us on this Committee. I thank 

him for making this appearance. 

[The prepared statement of Chairman Leahy follows:]

STATEMENT OF PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT

Attorney General Ashcroft, welcome. 

In the 12 weeks since the September 11 attacks, Americans in law enforcement 

have been working tirelessly to protect the public, to capture and thwart terrorists, 

and to bring them to justice. For its part, Congress too has moved promptly on sevVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00306 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
301

eral fronts, including our expedited consideration and enactment of the anti-terrorism bill two months ago. 

In the two months since your last appearance before this committee, terrorism 

also has reached Congress’s doorstep. That is why we are meeting in this room 

today, and not in the Hart Building, which remains closed. 

Last week the Justice Department witness appearing before this committee described Congress as a ‘‘full partner’’ in our nation’s anti-terrorism efforts. That is 

how the Founders and our Constitution intended it. The partnership of our two 

branches of government working together produced an anti-terrorism bill that was 

better than either branch acting alone would have produced, and with greater public 

confidence in the result. America works best when all parts of our government govern together. 

As we continue our discussion of important and difficult questions about the 

means to be used in the fight against terrorism, let no one, friend or foe, mistake 

this for anything other than what it is: a principled discussion of policy approaches, 

and a constructive assessment of the effectiveness of those approaches, undertaken 

by partners in our country’s efforts against a common enemy. 

Tomorrow is the 60th anniversary of the attack on Pearl Harbor. Many have compared the galvanizing effect of that attack to that of the atrocities committed on 

September 11. Today, as 60 years ago, government at every level is under great 

pressure to act. Our system is intended to help make sure that what we do keeps 

us on a heading that achieves our goals while holding true to our constitutional 

principles. The Constitution does not need protection when its guarantees are popular, but it very much needs our protection when events tempt us to, ‘‘just this 

once,’’ abridge its guarantees of our freedom. 

The need for congressional oversight and vigilance is not, as some mistakenly describe it, ‘‘to protect terrorists;’’ it is to protect ourselves and our freedoms, something in which each and every American has a stake. It is to make sure that we 

keep in sight at all times the line that separates tremendous government power on 

the one hand and the rights and liberties of all Americans on the other. It is to 

make sure that our government has good reason before snooping into our bank 

records, our tax returns or our e-mail, or before the government listens in as we 

talk with our attorneys. It is to make sure that no one official, however well intentioned, decides when that line is to be crossed, without good reason for that decision. 

Whether the Administration’s recent unilateral actions are popular or unpopular at 

the moment, as the oversight committee for the Department of Justice, we accept 

our responsibility to examine them. This is our role under the Constitution, this is 

our duty, and we will not shrink from it. 

So, too, is congressional oversight important in helping to maintain public confidence in our system of laws. In our society, unlike in so many other nations, when 

a judge issues an order, it is respected and carried out because the public has faith 

in our system and its laws. The division of power and the checks and balances built 

into our system help sustain and earn the public’s confidence in the actions taken 

by their government. The consent of the governed that is at the heart of our democracy makes our laws effective and sustains our society. 

I commend Senator Schumer, the chair of the Administrative Oversight and the 

Courts Subcommittee, and Senator Feingold, the chair of our Constitution Subcommittee, for holding their hearings earlier this week, and for the constructive contributions to those hearings by Senator Hatch, Senator Sessions, Senator Durbin, 

Senator Feinstein and others. They were acting in the finest tradition of the Senate 

and this country. 

During the past week of hearings and public debate, this oversight process already has contributed to clarifying the President’s order to establish military tribunals. It now seems that the President’s language that ostensibly suspends the writ 

of habeas corpus, the language providing for secret trials, and the expansive sweep 

of the President’s November 13 order were not intended; instead the Administration’s intention is to use procedural rules more like those used in our courts and 

our courts martial. Over the last week it has become clearer that, as written, the 

President’s order outlines a process that is far different than our military system 

of justice. American military justice is the best in the world and includes open trials, 

right to counsel and judicial review. It also appears that the risks of pursuing ‘‘victor’s justice’’ are beginning to be understood more fully as the initial conception of 

the order is being reformed and clarified. I commend the members of this committee 

for their contributions to that process. 

Last week, Senator Specter wrote an article expressing his concern that the Administration had not demonstrated the need for the President’s extraordinarily 

broad order on military commissions. Others, Democrats and Republicans, moderates and conservatives, have expressed concern about the broad powers asserted 

302

by the Administration and about the manner in which it has asserted them—bypassing both Congress and the courts. Last Wednesday’s hearing allowed the Committee to hear firsthand from legal experts across the spectrum on these questions 

and to assist in clarifying the Administration’s intentions and actions. 

There are circumstances where military tribunals are appropriate. I agree with 

the constitutional experts and others who have testified before the Committee that 

military tribunals can have a role in our prosecution of the campaign against terrorism. However, many issues remain about how to proceed with such tribunals in 

the best interests of our national security. Ultimately, the question is not only 

whether our government has the right or the power to take certain actions and in 

certain ways, but whether the means we choose truly protect our security. 

Defining those circumstances where military tribunals serve our national security 

interests is no easy task, and Congress has contributions to make to this discussion, 

as we already have. To many, the constitutional requirement that military tribunals 

be authorized by Congress is clear. To others, it is not. To everyone, it should be 

beyond argument that such an authorization, carefully drawn by both branches of 

government, would be helpful in resolving this doubt and in lending credibility to 

their use. Several members of the Committee of both parties have been crafting 

ideas for such an authorizing resolution to clarify these issues, and I invite you to 

work with members of the Committee in exploring a consensus charter for tribunals. 

It is never easy to raise questions about the conduct of the Executive Branch 

when our military forces are engaged in combat, even when those questions do not 

concern our military operations. The matters we are examining concern homeland 

security, our constitutional rights, and preserving the limits on governmental authority that form the foundation of our constitutional democracy. These are questions that go to the heart of what America stands for, to its people and to the world, 

when we are put to the test. These are questions that we need to debate openly and 

thoughtfully. This committee hopes to cast the light of reasoned public inquiry on 

the Administration’s actions, especially on sweeping unilateral actions that might 

affect fundamental rights. Ultimately, taking a close look at assertions of government power is one of the best ways to preserve our freedoms and ensure our security. 

None of us in elective or appointive positions in government has a monopoly of 

wisdom or of patriotism, and under our system, neither do any of us have a monopoly of authority. 

The Framers of our Constitution had great confidence in George Washington and 

certainly did not expect him to abuse his power. But they did not entrust their liberty to his, or to any government’s, good intentions. Instead they provided for a system of checks and balances, including congressional oversight, judicial review and 

openness to public scrutiny. This committee will be vigilant in seeking to preserve 

those fundamentals of our American constitutional system. We can be both tough 

on terrorists and true to the Constitution. 

I look forward to hearing from the Attorney General. I want to thank him again 

for appearing today and hope that he will be able to stay to answer the questions 

of all senators.

Chairman LEAHY. I turn to Senator Hatch, a man I have served 

with for decades now, back when his hair was black and mine was 

there. 

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

THE STATE OF UTAH 

Senator HATCH. That is right. Well, thank you, Mr. Chairman. 

I am honored to be with you today, and as you know, I was pleased 

to co-author with you the letter we sent to our good friend and 

former colleague, the Attorney General of the United States, asking 

him to come before this Committee to describe for us and for the 

American people some of the recent initiatives undertaken by the 

administration to protect Americans from terrorist attacks. And I 

am gratified that Attorney General Ashcroft readily accepted our 

invitation and has taken time from his critical duties to be here 

with us today. 

Mr. Chairman, a week ago, the airwaves were filled with alarmist rhetoric charging that the administration’s actions had tramVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00308 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
303

pled the Constitution. During the course of these oversight hearings, as expert after expert has affirmed the constitutionality of 

these measures, I have noticed a change in the tone of the criticisms being leveled at the administration. The principal complaints 

we now hear are not that the measures are unconstitutional but, 

rather, that the Justice Department has engaged in insufficient 

consultation with Congress or with this Committee before announcing them. 

Now, I have a couple of observations on this particular topic. 

First, let’s put this issue in perspective. We are at war. We are battling an enemy committed to an absolute, unconditional destruction 

of our society. The principal means that the enemy employs toward 

this goal is the killing of our civilians in their homes and in their 

places of business. To the extent that this war is being waged on 

American soil, the Attorney General is one of the leaders in this 

war. I would hope that in this time of crisis we would all check our 

egos and for the good of this country look at the merits of these 

proposals rather than the manner in which they are packaged. 

I am not saying that we don’t have a solemn obligation to assess 

the Department’s actions to ensure that they are both effective and 

sufficiently protective of our civil liberties. But do any members of 

this Committee really believe that in this time of crisis the American people, those who live outside the Capital Beltway, really care 

whether the President, the Secretary of Defense, or the Attorney 

General took the time to pick up the telephone and call us prior 

to implementing these emergency measures? I implore my colleagues, let’s keep our focus where it matters: on protecting our 

citizens. 

Certainly the American people are not interested in watching us 

quibble about whether we should provide more rights than the 

Constitution requires to the criminals and terrorists who are devoted to killing our people. They are interested in making sure that 

we protect our country against terrorist attacks. 

To those of you who say that our input is necessary to make sure 

that these measures are done right, I say look around, look at the 

actions of the President. What do you think is happening? President Bush could have proceeded as President Franklin D. Roosevelt 

did in 1942. He could have privately called the Secretary of Defense and had him start working confidentially on procedures for 

military tribunals. 

Months from now, President Bush could have announced we 

have captured some terrorists in Afghanistan, we will try them by 

military tribunal and here are the procedures for the tribunals that 

have been established by the Secretary of Defense. 

President Bush did not proceed that way. Instead, he responsibly, in my opinion, announced that he wanted military tribunals 

to be one option for trying unlawful combatants against this country. He publicly tasked the Secretary of Defense with drafting the 

procedures to be employed. Since then, this Committee, the Armed 

Services Committee, numerous law professors, and just about every 

pundit with a microphone or typewriter have each expressed their 

opinion as to how those procedures should be written. That is consultation. 

304

And to show how serious the President is about this process, he 

reserved to himself the ultimate designation as to who will be tried 

in military tribunals, unlike FDR, who delegated the decision to 

members of our armed forces—and, I might add, had the approval 

of both the New York Times and the then-predecessor of the Washington Post in the process. 

Mr. Chairman, what the hearings over the last 2 weeks have 

shown is this: The vast weight of legal authority confirms the constitutionality of military tribunals. And if the issue to be analyzed 

is not the constitutionality of the tribunals but, rather, the fairness 

of the procedures to be used, then any criticism is entirely premature because the administration has not yet promulgated the 

procedures that will be employed. 

Any questions to Attorney General Ashcroft on this topic would 

be particularly pointless because it is Secretary of Defense Rumsfeld, not General Ashcroft, who is charged with drafting the procedures, although we all hope that they will consult with General 

Ashcroft in the process. And I personally believe they will. 

On the issue of detainees, what we have learned is that every 

person being detained has either been charged with a violation of 

U.S. law or being held pursuant to a decision of a Federal judge 

to issue a material witness warrant. Each of the detainees has had 

access to legal counsel or the right to access to legal counsel and 

has the right to challenge the grounds for his detention. Every detainee may, if he wishes, publicize his plight through legal counsel, 

friends, family, and/or the media. And while there has been some 

anecdotal evidence that the system has not worked flawlessly in 

the wake of the September 11th problems, there is absolutely no 

basis for believing that the Department of Justice has initiated any 

systematic policy to deprive detainees of their constitutional rights. 

Mr. Chairman, let me also take a moment to correct the record 

on one score. At the time we sent our letter to General Ashcroft, 

it was widely misreported in the press that I was displeased with 

the Attorney General and had ‘‘demanded’’ his appearance before 

the Committee. Nothing could be further from the truth. I for one 

have been extremely pleased with the degree to which he and the 

Department as a whole have been responsive to this Committee’s 

oversight responsibilities and requests. Not only did the Attorney 

General promptly respond to our invitation to testify, he and the 

Department have diligently and thoroughly responded to all of the 

many questions and document requests that have been sent to 

them by the Committee throughout this year. 

And the Department has not just been responsive to our oversight efforts. They have been proactive as well. Last week, when 

the first in a series of DOJ—Department of Justice—oversight 

hearings was convened, the Department of Justice was not initially 

invited to testify. Commendably, the Department of Justice reached 

out saying that they believed it was appropriate, given the fact that 

they were the subject of the hearing, that they also be participants 

at the hearing. Assistant Attorney General Michael Chertoff made 

himself available and provided testimony last week that I think we 

can all agree was very helpful to the Committee, and erudite testimony at that. 

305

The same thing happened this week, when the Department was 

again not invited to testify at Tuesday afternoon’s oversight hearing. Again, the Department reached out to us and offered us more 

testimony which greatly contributed to the work of this Committee. 

I must say the candor and responsiveness exhibited by this Department of Justice in its dealing with this Committee is a refreshing 

departure from the responsiveness of the previous administration 

to our oversight responsibilities. 

As you all know, I was chairman of this Committee for 6 of those 

previous administration years, and I can tell you that getting responsive answers from the Department of Justice during that period was like pulling teeth, whether we were examining the previous administration’s pardoning and release of 11 convicted terrorists affiliated with the FALN or the campaign finance irregularities 

probe and the famous conflicting views within the Justice Department on whether to appoint a special counsel to the Elian Gonzalez 

matter, to the last-minute pardons and so on. 

Given this previous experience, Attorney General Ashcroft’s candor and responsiveness to this Committee are, in my opinion, pretty commendable and all the more commendable. I would like to 

thank you, General Ashcroft, for your honorable service to the 

country as Attorney General. I know that this Nation is a safer 

place due in large measure to what you and this administration is 

doing and basically to your tireless, honest efforts to rid us of 

crime. 

Mr. Chairman, I am pleased to see, and supportive of, this Committee exercising its oversight authority over the Department of 

Justice, and I trust that the Department of Justice will always be 

cooperative. 

I trust that we all agree as to the reason why it is important that 

we exercise this oversight function. It is, or at least it should be, 

to help the Department of Justice more effectively carry out its duties and to ensure that it does so consistently with congressional 

directives. 

Now, I hope that we can also agree, however, that there is a 

point at which aggressive oversight by this Committee becomes 

counterproductive. Certainly we do not want to reach a point where 

the senior leadership of the Department spends all of its time responding to inquiries from our Committee regarding the terrorism 

investigation and none of its time actually tracking down terrorists. 

And I know some might try to argue that this is a partisan criticism. Well, it is not. It is a bipartisan concern. I should note that 

one of our Senate Democratic colleagues yesterday properly observed in a press release that, ‘‘They need to get off his back and 

let Attorney General Ashcroft do his job. Military tribunals have 

been used throughout history. The Supreme Court has twice 

upheld them as constitutional. Now we are at war, and we are 

talking about using military tribunals only for non-citizens. Why in 

the world would we try our own soldiers with this system of justice 

but not some foreigner who is trying to kill us? It is crazy. These 

nit-pickers need to find another nit to pick.’’

I like that. 

[Laughter.] 

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Senator HATCH. Let me continue. ‘‘They need to stop protecting 

the rights of terrorists. This is about national security. This is 

about life and death.’’ Now, I don’t mean in any way to suggest that we should not be 

performing appropriate oversight or to suggest ill motives behind 

this hearing today. I certainly don’t mean to do that. And I appreciate working with my chairman on this matter. 

I should also note that these public hearings were not the only 

opportunity that the members of our Committee have had to pose 

inquiries to the Department of Justice. Several members have submitted numerous additional written questions following last week’s 

hearing. The last time the Attorney General appeared before this 

Committee, Mr. Chairman, you alone directed 21 questions to him, 

with multiple sub-parts. By my own count, over the last 2 months 

you have submitted 12 letters to the Justice Department officials, 

requesting hundreds of pages of documents and posing dozens of 

questions, and that is your right to do. 

Now, General Ashcroft, I again want to thank you, and particularly the men and women of the Department of Justice for their 

herculean efforts over the past number of weeks, and especially 

over the last week and a half in responding to the oversight efforts 

of this Committee. We have had a lot of questions, and your responses over the past week have helped allay many initially alarmist and sometimes hysterical concerns. 

And let us not forget that these same men and women at the Department of Justice are the ones who are charged with the essential task of making sure that a day like September 11th never happens again on our soil or any action like those that occurred last 

week against us. 

Now, if my colleagues would like to grant additional authorities 

to the President or the Attorney General to aid in this war and to 

save American lives, I for one will be all ears, as long as such powers are consistent with our Constitution. 

Mr. Chairman, there is no real question remaining as to the constitutionality of the administration’s initiatives to date. I want to 

thank you for your dedication to oversight, and I am hopeful that 

today’s hearing will proceed as a fair examination into the administration’s actions to stop terrorists and save American lives. 

I want to thank you for this hearing. I thank the Attorney General for his willingness to be present and for his responsiveness to 

our oversight requests. Thank you very much. 

[The prepared statement of Senator Hatch follows:]

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

As you know, I was pleased to co-author, with you, the letter we sent to our good 

friend and former colleague, the Attorney General, asking him to come before this 

Committee to describe for us, and for the American people, some of the recent initiatives undertaken by the Administration to protect Americans from terrorist attacks. 

And I am gratified that General Ashcroft readily accepted our invitation and has 

taken time from his critical duties to be here today. 

Before beginning my statement, I would just like to correct the record on one 

score. At the time we sent our letter to General Ashcroft, it was widely misreported 

in the press that I was displeased with the Attorney General, and had ‘‘demanded’’

his appearance before the Committee. Nothing could be further from the truth. 

I joined the letter to General Ashcroft requesting his appearance because I believed it would be helpful to us, and to the American people, for the Attorney General to come before us and provide us with an update on the Department’s efforts 

307

to combat terrorism and bring to justice those who helped to perpetrate the barbaric 

attacks of September 11th. After we sent the letter, Mr. Chairman, you made some comments to the press 

in reference to the letter that were critical of the Attorney General. Because I was 

a co-signatory on that letter, your subsequent statements were attributed to me as 

well. 

So that there will be no mistake, I would like to say here, in the presence of the 

Attorney General, that I have been extremely pleased with the degree to which he, 

and the Department as a whole, have been responsive to this Committee’s oversight 

requests. Not only did the Attorney General promptly respond to our invitation to 

testify, he and the Department have diligently and thoroughly responded to all of 

the many questions and document requests that have been sent to them by this 

Committee throughout the year. 

And the Department has not just been responsive to our oversight efforts, they 

have been proactive as well. Last week, when the first in this series of DOJ oversight hearings was convened, the Department of Justice was not invited to testify. 

Commendably, the DOJ reached out, saying that they believed it was appropriate, 

given the fact that they were the subject of the hearing, that they also be participants at the hearing. Assistant Attorney General Michael Chertoff made himself 

available, and provided testimony last week that, I think we can all agree, was very 

helpful to the Committee. 

The same thing happened this week, when the Department was again not invited 

to testify at Tuesday afternoon’s oversight hearing. Again, the Department reached 

out to us, and offered Assistant Attorney General Viet Dinh as a witness. And 

again, I think we can all agree, Mr. Dinh’s testimony greatly contributed to the 

work of this Committee. 

I must say, the candor and responsiveness exhibited by this Department of Justice 

in its dealings with this Committee is a refreshing departure from the responsiveness of the previous Administration to our oversight requests. 

As you all know, I was Chairman of this Committee for the last six years of the 

previous Administration, and I can tell you that getting responsive answers from 

the Department of Justice during that period was like pulling teeth. Whether we 

were examining the previous administration’s pardoning and release of 11 convicted 

terrorists affiliated with the FALN, or the campaign finance irregularities probe and 

the famous conflicting views within the Justice Department on whether to appoint 

a special counsel, to the Elian Gonzalez matter, to the last-minute pardons. . .and 

so on. I must say, given this previous experience, Attorney General Ashcroft’s candor 

and responsiveness to this Committee are all the more commendable. I would like 

to thank him for his honorable service to this country as Attorney General. I know 

this nation is a safer place due, in large part, to his tireless, honest efforts to rid 

us of crime. 

Mr. Chairman, I am pleased to see, and supportive of, this Committee exercising 

its oversight authority over the Department of Justice. 

I trust that we all agree as to the reason why it is important that we exercise 

this oversight function: it is, or at least it should be, to help the DOJ more effectively carry out its duties, and to ensure that it does so consistently with Congressional directives. 

I hope that we can also agree, however, that there is a point at which aggressive 

oversight by this Committee becomes counter-productive. Certainly, we do not want 

to reach a point where the senior leadership at the Department spends all of its 

time responding to inquiries from our Committee regarding the terrorism investigation, and none of its time actually tracking down terrorists. 

And, I know some might try to argue that this a partisan criticism. Well it is not, 

it is a bipartisan concern. I should note that one of our Senate Democratic colleagues yesterday properly observed in a press release that, ‘‘They need to get off 

his back and let Attorney General Ashcroft do his job. Military tribunals have been 

used throughout history. The Supreme Court has twice upheld them as constitutional. Now, we’re at war, and we’re talking about using military tribunals only for 

non-citizens. Why in the world would we try our own soldiers with this system of 

justice but not some foreigner who is trying to kill us? It’s crazy. These nit-pickers 

need to find another nit to pick. They need to stop protecting the rights of terrorists. 

This is about national security. This is about life and death.’’ Now, I don’t mean 

in any way to suggest that we should not be performing appropriate oversight, or 

to suggest ill motives behind this hearing today. 

My friends, in the last two weeks, we have heard from Justice Department officials, State Department officials, law professors, journalists, defense attorneys, and 

even an illegal alien from Yemen who was detained the week after the September 

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11th attacks with box-cutters in his possession. We have heard from two former Attorneys General of the United States, one from a Republican Administration and 

one from a Democratic Administration—who, I might add, both testified that they 

saw no Constitutional problem with any of the actions that are the subject of these 

hearings. 

Some of our friends in academia have not been shy in their criticism of the Administration. One professor whom the Committee invited to testify at last week’s 

hearing compared the United States government to certain authoritarian regimes in 

Latin America and the totalitarian regime in China. 

Nor were these public hearings the only opportunity that the members of our 

Committee have had to pose inquiries to the Department of Justice. Several members have submitted numerous additional written questions following last week’s 

hearing. The last time the Attorney General appeared before this committee, Mr. 

Chairman, you alone directed 21 questions to him, with multiple subparts. By my 

count, over the last 2 months you have submitted 12 letters to Justice Department 

officials, requesting hundreds of pages of documents and posing dozens of questions. 

Which brings us to today. Mr. Chairman, as I said earlier, a couple of weeks ago, 

I joined you in inviting the Attorney General to testify before us on these matters. 

I continue to believe it is appropriate to have General Ashcroft testify here today. 

These are important topics, and I know that General Ashcroft welcomes the opportunity to address any concerns that may be raised by the members of the Committee. 

General Ashcroft, I want to thank you, and particularly the men and women of 

the Department of Justice, for their Herculean efforts over the last week and a half, 

in responding to the oversight efforts of this Committee. We have had a lot of questions, and your responses over the past weeks have helped allay many initially 

alarmist and hysterical concerns. 

And let us not forget, these same men and women at the Department of Justice 

are the ones who are charged with the essential task of making sure that a day 

like September 11th never happens again. 

As we continue to hold these hearings, I would hope that we don’t forget our own 

essential task of confirming the President’s nominees to the positions so important 

to winning the war against terrorism, and to ensuring that we have justice and liberties. As you know, there has been increasing criticism from around the country 

for this Committee to take action on the President’s nominees—both for judgeships 

and for important posts in the Administration. Even the Washington Post, has criticized this Committee’s failure to act on these important judicial nominations, particularly given the vacancy crisis we face in our judiciary today. As we all recognize, 

justice delayed is justice denied. This was not a digression, but I think that our duty 

to act on the President’s nominees is at least as critical as our duties of oversight 

and I would simply hope that we will be as diligent in that role in the coming weeks 

and months as we are with our oversight responsibility. 

Mr. Chairman, what the hearings over the last two weeks have shown is this: the 

vast weight of legal authority confirms the constitutionality of military tribunals. 

And, if the issue to be analyzed is not the constitutionality of the tribunals, but 

rather the fairness of the procedures to be used, then any criticism is entirely premature, because the Administration has not yet promulgated the procedures that 

will be employed. Any questions to Attorney General Ashcroft on this topic would 

be particularly pointless, because it is Secretary of Defense Rumsfeld, not General 

Ashcroft, who is charged with drafting the procedures. 

On the issue of detainees, what we have learned is that every person being detained has either been charged with a violation of U.S. law, or is being held pursuant to the decision of a federal judge to issue a material witness warrant. Each of 

the detainees has had access to legal counsel and has the right to challenge the 

grounds for his detention. Every detainee may, if he wishes, publicize his plight, 

through legal counsel, friends, family, and/or the media. While there has been anecdotal evidence that the system has not worked flawlessly in the wake of September 

11th, there is absolutely no basis for believing that the Department of Justice has 

initiated any systematic policy to deprive detainees of their Constitutional rights. 

Now if my colleagues would like to grant additional authorities to the President 

or the Attorney General, to aid in this war, and to save American lives, then I am 

all ears—as long as such powers are consistent with our Constitution. 

Mr. Chairman, a week ago the airwaves were filled with alarmist rhetoric, charging that the Administration’s actions had trampled the Constitution. During the 

course of these oversight hearings, as expert after expert has affirmed the constitutionality of these measures, I have noticed a change in the tone of the criticisms 

being leveled at the Administration. 

309

The principal complaints we now hear are not that the measures are unconstitutional, but rather that the Justice Department has engaged in insufficient consultation with Congress, or with this Committee, before announcing them. 

I have a couple of observations on this topic. 

First, let’s put this issue in perspective. We are at war. We are battling an enemy 

committed to the absolute, unconditional destruction of our society. The principal 

means that the enemy employs toward this goal is the killing of our civilians in 

their homes and their places of business. To the extent that this war is being waged 

on American soil, the Attorney General is one of our leaders in this war. I would 

hope that, in this time of crisis, we could all check our egos, and for the good of 

the country, look at the merits of these proposals rather than the manner in which 

they are packaged. 

I’m not saying that we don’t have a solemn obligation to assess the Department’s actions to ensure that they are both effective and sufficiently protective of our civil 

liberties. But do any of the members of this Committee really believe that, in this 

time of crisis, the American people—those who live outside the Capital Beltway— really care whether the President, the Secretary of Defense, or the Attorney General 

took the time to pick up the telephone and call us prior to implementing these emergency measures? I implore my colleagues—let’s keep our focus where it matters— on protecting our citizens. 

Certainly, the American people are not interested in watching us quibble about 

whether we should provide more rights than the Constitution requires to the criminals and terrorists who are devoted to killing our people. They are interested in 

making sure we protect our country against terrorist attacks. 

To those of you who say that our input is necessary to make sure that these measures are done right, I say: look around, look at the actions of the President, what 

do you think is happening? 

President Bush could have proceeded as President Franklin D. Roosevelt did in 

1942. He could have privately called the Secretary of Defense and had him start 

working, confidentially, on procedures for military tribunals. Three months from 

now, President Bush could have announced: we have captured some terrorists in Afghanistan, we will try them by military tribunal, and here are the procedures for 

the tribunals that have been established by the Secretary of Defense. 

President Bush did not proceed that way. Instead, he—responsibly in my opinion—announced that he wanted military tribunals to be one option for trying unlawful combatants against this country. He publicly tasked the Secretary of Defense 

with drafting the procedures to be employed. Since then, this Committee, the Armed 

Services Committee, numerous law professors, and just about every pundit with a 

microphone or a typewriter have each expressed their opinion as to how those procedures should be written. That is consultation. 

And to show how serious the President is about this process, he reserved to himself the ultimate designation as to who will be tried in military tribunals—unlike 

FDR, who delegated the decision to members of our armed forces. 

Mr. Chairman, there is no real question remaining as to the constitutionality of 

the Administration’s initiatives to date. I thank you for your dedication to oversight, 

and I am hopeful that today’s hearing will proceed as a fair examination into the 

Administration’s actions to stop terrorists and save American lives. I thank you for 

this hearing and I thank the Attorney General for his willingness to be present and 

for his responsiveness to our oversight requests.

Chairman LEAHY. General Ashcroft, again, I appreciate your 

comment yesterday when we were talking that you welcomed the 

opportunity to be here. I think it is important that you are here. 

I appreciate that you felt the same way. The floor is yours. 

STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL 

OF THE UNITED STATES 

Attorney General ASHCROFT. Thank you, Mr. Chairman, Senator 

Hatch, and members of this Committee. I am grateful for the opportunity of appearing to testify before you today. It is a pleasure 

to be back in the United States Senate, and I am grateful. 

On the morning of September 11th, as the United States came 

under attack, I was in an airplane with several members of the 

Justice Department en route to Milwaukee, in the skies over the 

Great Lakes. By the time we could return to Washington, thouVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00315 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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sands of people had been murdered at the World Trade Center; 189 

more were dead at the Pentagon; 44 had died in the crash to the 

ground in Pennsylvania. From that moment, at the command of the 

President of the United States, I began to mobilize the resources 

of the Department of Justice toward one single, overarching, and 

overriding objective: to save innocent lives from further acts of terrorism. 

America’s campaign to save innocent lives from terrorists is now 

87 days old. It has brought me back to this Committee to report 

to you in accordance with Congress’ oversight role. I welcome this 

opportunity to clarify for you and for the American people how the 

Justice Department is working to protect American lives while preserving American liberties. 

Since those first terrible hours of September the 11th, America 

has faced a choice that is as stark as the images that linger of that 

morning. One option is to call September 11th a fluke, to believe 

it could never happen again, and to live in a dream world that requires us to do nothing differently. The other option is to fight 

back, to summon all our strength and all of our resources and devote ourselves to better ways to identify, disrupt, and dismantle 

terrorist networks. 

Under the leadership of President Bush, America has made the 

choice to fight terrorism—not just for ourselves but for all civilized 

people. Since September 11, through dozens of warnings to law enforcement, a deliberate campaign of terrorist disruption, tighter security around potential targets, and a preventative campaign of arrest and detention of lawbreakers, America has grown stronger— and safer—in the face of terrorism. 

Thanks to the vigilance of law enforcement and the patience of 

the American people, we have not suffered another major terrorist 

attack. Still, we cannot—we must not—allow ourselves to grow 

complacent. The reasons are apparent to me each morning. My day 

begins with a review of the threats to Americans and to American 

interests that have been received in the previous 24 hours. If ever 

there were proof of the existence of evil in the world, it is in the 

pages of these reports. They are a chilling daily chronicle of hatred 

of Americans by fanatics who seek to extinguish freedom, enslave 

women, corrupt education, and to kill Americans wherever and 

whenever they can. 

The terrorist enemy that threatens civilization today is unlike 

any we have ever known. It slaughters thousands of innocents—a 

crime of war and a crime against humanity. It seeks weapons of 

mass destruction and threatens their use against America. No one 

should doubt the intent, nor the depth, of its continuing, destructive hated. 

Terrorist operatives infiltrate our communities—plotting, planning, waiting to kill again. They enjoy the benefits of our free society even as they commit themselves to our destruction. They exploit our openness—not randomly or haphazardly, but by deliberate, premeditated design. 

This is a seized Al Qaeda training manual—a ‘‘how-to’’ guide for 

terrorists—that instructs enemy operatives in the art of killing in 

a free society. Prosecutors first made this manual public in the 

trial of the Al Qaeda terrorist who bombed U.S. embassies in AfriVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00316 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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ca. We are posting several Al Qaeda lessons from this manual on 

our Web site today so that Americans can know about the enemy. 

In this manual, Al Qaeda terrorists are now told how to use 

America’s freedom as a weapon against us. They are instructed to 

use the benefits of a free press—newspapers, magazines, broadcasts—to stalk and to kill victims. They are instructed to exploit 

our judicial process for the success of their operations. Captured 

terrorists are taught to anticipate a series of questions from authorities and, in each response, to lie—to lie about who they are, 

to lie about what they are doing, to lie about who they know in 

order for the operation to achieve its objective. Imprisoned terrorists are instructed in this manual to concoct stories of torture and 

mistreatment at the hands of our officials. They are directed to 

take advantage of any contact with the outside world. This manual 

instructs them to, and I quote, ‘‘communicate with brothers outside 

prison and exchange information that may be helpful to them in 

their work. The importance of mastering the art of hiding messages 

is self-evident here.’’ Mr. Chairman and members of this Committee, we are at war 

with an enemy that abuses individual rights as it abuses jetliners. 

It abuses those rights to make weapons of them with which to kill 

Americans. We have responded by redefining the mission of the Department of Justice. Defending our Nation and its citizens against 

terrorist attacks is now our first and overriding priority. 

We have launched the largest, most comprehensive criminal investigation in world history to identify the killers of the September 

11th tragedy and to prevent further terrorist attacks. Four thousand FBI agents are engaged with other international counterparts 

in an unprecedented worldwide effort to detect, disrupt, and dismantle terrorist organizations. 

We have created a national task force at the FBI to centralize 

control and information sharing in our investigation. This task 

force has investigated hundreds of thousands of leads, conducted 

over 500 searches, interviewed thousands of witnesses, and obtained numerous court-authorized surveillance orders. Our prosecutors and agents have collected information and evidence from countries throughout the Middle East and Europe. 

Immediately following the September 11th attacks, the Bureau of 

Prisons acted swiftly to intensify security precautions in connection 

with Al Qaeda and other terrorist inmates, increasing perimeter security at a number of key facilities. 

We have sought and received additional tools from Congress for 

which we are grateful. You have cited them, and they were important. Already we have begun to utilize many of these tools. Within 

hours of the passage of the USA PATRIOT Act, we made use of its 

provisions to begin enhanced information sharing between the law 

enforcement and intelligence communities. We have used the provisions allowing nationwide search warrants for e-mail and subpoenas for payment information. And we have used the Act to place 

those who access the Internet through cable companies on the 

same footing as other individuals. 

Just yesterday, at my request, the State Department designated 

39 entities as terrorist organizations pursuant to the USA PATRIOT Act. 

312

We have waged a deliberate campaign of arrest and detention to 

remove suspected terrorists who violate the law from our streets. 

Currently, we have brought criminal charges against 110 individuals, of whom 60 are in Federal custody. The INS has detained 563 

individuals on immigration violations, has in detention today. 

We have investigated more than 250 incidents of retaliator violence and threats against Arab Americans, Muslim Americans, 

Sikh Americans, and South Asian Americans. 

Since September the 11th, the Customs Service and Border Patrol have been at their highest state of alert. All vehicles and persons entering this country are subjected to the highest level of 

scrutiny. Working with the State Department, we have imposed 

new screening requirements on certain applicants for non-immigrant visas. At the direction of the President, we have created a 

Foreign Terrorist Tracking Task Force to ensure that we do everything we can to prevent terrorists from entering the country and 

to locate and remove those who are already here. 

We have prosecuted to the fullest extent of the law individuals 

who waste precious law enforcement resources through anthrax 

hoaxes. 

We have offered non-citizens willing to come forward with valuable information a chance to live in this country and one day to become citizens. 

We have forged new cooperative agreements with Canada to protect our borders and the economic prosperity that our borders, and 

the appropriate maintenance of the flow of commerce across those 

borders, sustain. 

We have embarked on a wartime reorganization of the Department of Justice. We are transferring resources and personnel to the 

field offices where citizens are served and protected. The INS is 

being restructured to better perform its service and border security 

responsibilities. Under Director Bob Mueller, the FBI is undergoing 

a historic reorganization to put the prevention of terrorism at the 

center of its law enforcement and national security efforts. 

Outside Washington, we are forging new relationships of cooperation with State and local law enforcement. 

We have created 93 Anti–Terrorism Task Forces across the country in each U.S. Attorney’s district to integrate the communications 

and activities of State, local, and Federal law enforcement. 

In all these ways and more, the Department of Justice has 

sought to prevent terrorism with reason, careful balance, and excruciating attention to detail. Some of our critics, I regret to say, 

have shown less affection for detail. Their bold declarations of socalled facts have quickly dissolved, upon inspection, into vague conjecture. Charges of kangaroo courts and shredding the Constitution 

give new meaning to the term ‘‘fog of war.’’

Since lives and liberties depend upon clarity, not obfuscation, 

and upon reason, not hyperbole, let me take this opportunity to be 

clear: Each action taken by the Department of Justice, as well as 

the war crimes commissions considered by the President and the 

Department of Defense, is carefully drawn to target a narrow class 

of individuals—terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists. Our prevention 

strategy targets the terrorist threat. 

313

Since 1983, the United States Government has defined terrorists 

as those who perpetrate premeditated, politically motivated violence against non-combatant targets. My message to America this 

morning, then, is this: If you fit this definition of a terrorist, fear 

the United States, for you will lose your liberty. 

We need honest, reasoned debate, not fear-mongering. To those 

who pit Americans against immigrants and citizens against noncitizens, to those who scare peace-loving people with phantoms of 

lost liberty, my message is this: Your tactics only aid terrorists, for 

they erode our national unity and diminish our resolve. They give 

ammunition to America’s enemies and pause to America’s friends. 

They encourage people of good will to remain silent in the face of 

evil. 

Our efforts have been crafted carefully to avoid infringing on constitutional rights while saving American lives. We have engaged in 

a deliberate campaign of arrest and detention of lawbreakers. All 

persons being detained have the right to contact their lawyers and 

their families. Our respect for their privacy and concern for saving 

lives motivates us not to publicize the names of those detained. 

We have the authority to monitor the conversations of 16 of the 

158,000 Federal inmates and their attorneys because we suspect 

these communications could facilitate acts of terrorism. Each such 

prisoner has been told in advance his conversations will be monitored. None of the information that is protected by attorney-client 

privilege may be used for prosecution. Information will only be 

used to stop impending terrorist acts and to save American lives. 

We have asked a very limited number of individuals—visitors to 

our country holding passports from countries with active Al Qaeda 

operations—to speak voluntarily to law enforcement. We are forcing them to do nothing. We are merely asking them to do the right 

thing: to willingly disclose information they may have of terrorist 

threats to the lives and safety of all people in the United States. 

Throughout all our activities since September the 11th, we have 

kept Congress informed of our continuing efforts to protect the 

American people. Beginning with a classified briefing by Director 

of the FBI Mueller and me on the very evening of September 11th, 

the Justice Department has briefed members of the House, the 

Senate, and their staffs on more than 100 occasions. 

We have worked with Congress in the belief and the recognition 

that no single branch of Government alone can stop terrorism. We 

have consulted with members out of respect for the separation of 

powers that is the basis of our system of Government. However, 

Congress’ power of oversight is not without limits. The Constitution 

specifically delegates to the President the authority to, and I quote, 

‘‘take care that the laws are faithfully executed.’’ And perhaps most 

importantly, the Constitution vests the President with the extraordinary and sole authority as Commander-in–Chief to lead our Nation in times of war. 

Mr. Chairman and members of this Committee, not long ago I 

had the privilege of sitting where you now sit. I have the greatest 

reverence and respect for the constitutional responsibilities you 

shoulder. I will continue to consult with Congress so that you may 

fulfill your constitutional responsibilities. In some areas, however, 

I cannot and will not consult with you. 

314

The advice I give to the President, whether in his role as Commander-in–Chief when at war or in any other capacity, is privileged and confidential. I cannot and will not divulge the contents, 

the context, or even the existence of such advice to anyone—including Congress—unless the President instructs me so to do. I cannot 

and will not divulge information, nor do I believe that anyone here 

would wish me to divulge information, that would damage the national security of the United States, the safety of its citizens, or our 

efforts to ensure the same in an ongoing investigation. 

As Attorney General, it is my responsibility—at the direction of 

the President—to exercise those core executive powers the Constitution so designates. The law enforcement initiatives undertaken 

by the Department of Justice, those individuals we arrest, detain, 

or seek to interview, fall under these core executive powers. In addition, the President’s authority to establish war crimes commissions arises out of his power as Commander-in–Chief. For centuries, Congress has recognized this authority, and the Supreme 

Court has never held that any Congress may limit it. 

In accordance with over 200 years of historical and legal precedent, the executive branch is now exercising its core constitutional 

powers in the interest of saving the lives of Americans. I trust that 

Congress will respect the proper limits of executive branch consultation that I am duty-bound to uphold. I trust, as well, that 

Congress will respect this President’s authority to wage war on terrorism and to defend our Nation and its citizens with all the power 

vested in him by the Constitution and entrusted to him by the 

American people. 

I thank you for your willingness to allow me to complete this 

statement. 

[The prepared statement of General Ashcroft follows.]

STATEMENT OF HON. JOHN ASHCROFT, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. Chairman, Senator Hatch, members of the Judiciary Committee, thank you 

for this opportunity to testify today. It is a pleasure to be back in the United States 

Senate. 

On the morning of September 11, as the United States came under attack, I was 

in an airplane with several members of the Justice Department en route to Milwaukee, in the skies over the Great Lakes. By the time we could return to Washington, thousands of people had been murdered at the World Trade Center. 189 

were dead at the Pentagon. Forty-four had crashed to the ground in Pennsylvania. 

From that moment, at the command of the President of the United States, I began 

to mobilize the resources of the Department of Justice toward one single, over-arching and over-riding objective: to save innocent lives from further acts of terrorism. 

America’s campaign to save innocent lives from terrorists is now 87 days old. It 

has brought me back to this committee to report to you in accordance with 

Congress’s oversight role. I welcome this opportunity to clarify for you and the 

American people how the Justice Department is working to protectAmerican lives 

while preserving American liberties. 

Since those first terrible hours of September 11, America has faced choice that 

is as stark as the images that linger of that morning. One option is to call September 11 a fluke, to believe it could never happen again, and to live in a dream 

world that requires us to do nothing differently. The other option is to fight back, 

to summon all our strength and all our resources and devote ourselves to better 

ways to identify, disrupt and dismantle terrorist networks. 

Under the leadership of President Bush, America has made the choice to fight terrorism—not just for ourselves but for all civilized people. Since September 11, 

through dozens of warnings to law enforcement, a deliberate campaign of terrorist 

disruption, tighter security around potential targets, and a preventative campaign 

of arrest and detention of lawbreakers, America has grown stronger—and safer—

in the face of terrorism. 

315

Thanks to the vigilance of law enforcement and the patience of the American people, we have not suffered another major terrorist attack. Still, we cannot—we must 

not—allow ourselves to grow complacent. The reasons are apparent to me each 

morning. My day begins with a review of the threats to Americans and American 

interests that were received in the previous 24 hours. If ever there were proof of 

the existence of evil in the world, it is in the pages of these reports. They are a 

chilling daily chronicle of hatred of America by fanatics who seek to extinguish freedom, enslave women, corrupt education and to kill Americans wherever and whenever they can. 

The terrorist enemy that threatens civilization today is unlike any we have ever 

known. It slaughters thousands of innocents—a crime of war and a crime against 

humanity. It seeks weapons of mass destruction and threatens their use against 

America. No one should doubt the intent, nor the depth, of its consuming, destructive hatred. 

Terrorist operatives infiltrate our communities—plotting, planning and waiting to 

kill again. They enjoy the benefits of our free society even as they commit them 

selves to our destruction. They exploit our openness—not randomly or haphazardly—but by deliberate, premeditated design. 

This is a seized al Qaeda training manual—a ‘‘how-to’’ guide for terrorists- that 

instructs enemy operatives in the art of killing in a free society. Prosecutors first 

made this manual public in the trial of the al Qaeda terrorists who bombed U.S. 

embassies in Africa. We are posting several al Qaeda lessons from this manual on 

our website today so Americans can know our enemy. 

In this manual, al Qaeda terrorists are told how to use America’s freedom as a 

weapon against us. They are instructed to use the benefits of a free press- newspapers, magazines and broadcasts—to stalk and kill their victims. They are instructed to exploit our judicial process for the success of their operations. Captured 

terrorists are taught to anticipate a series of questions from authorities and, in each 

response, to lie—to lie about who they are, to lie about what they are doing and 

to lie about who they know in order for the operation to achieve its objective. Imprisoned terrorists are instructed to concoct stories of torture and mistreatment at 

the hands of our officials. They are directed to take advantage of any contact with 

the outside world to, quote,’’communicate with brothers outside prison and exchange 

information that may be helpful to them in their work. The importance of mastering 

the art of hiding messages is self-evident here.’’

Mr. Chairman and members of the committee, we are at war with an enemy who 

abuses individual rights as it abuses jet airliners: as weapons with which to kill 

Americans. We have responded by redefining the mission of the Department of Justice. Defending our nation and its citizens against terrorist attacks is now our first 

and overriding priority. 

We have launched the largest, most comprehensive criminal investigation in 

world history to identify the killers of September 11 and to prevent further terrorist 

attacks. Four thousand FBI agents are engaged with their international counterparts in an unprecedented worldwide effort to detect, disrupt and dismantle terrorist organizations. 

We have created a national task force at the FBI to centralize control and information sharing in our investigation. This task force has investigated hundreds of 

thousands of leads, conducted over 500 searches, interviewed thousands of witnesses 

and obtained numerous court—authorized surveillance orders. Our prosecutors and 

agents have collected information and evidence from countries throughout Europe 

and the Middle East. 

Immediately following the September 11 attacks, the Bureau of Prisons acted 

swiftly to intensify security precautions in connection with all al Qaeda and other 

terrorist inmates, increasing perimeter security at a number of key facilities. 

We have sought and received additional tools from Congress. Already, we have 

begun to utilize many of these tools. Within hours of passage of the USA PATRIOT 

Act, we made use of its provisions to begin enhanced information sharing between 

the law-enforcement and intelligence communities. We have used the provisions allowing nationwide search warrants for e-mail and subpoenas for payment information. And we have used the Act to place those who access the Internet through cable 

companies on the same footing as everyone else. 

Just yesterday, at my request, the State Department designated 39 entities as terrorist organizations pursuant to the USA PATRIOT Act. 

We have waged a deliberate campaign of arrest and detention to remove suspected terrorists who violate the law from our streets. Currently, we have brought 

criminal charges against 110 individuals, of whom 60 are in federal custody. The 

INS has detained 563 individuals on immigration violations. 

316

We have investigated more than 250 incidents of retaliatory violence and threats 

against Arab Americans, Muslim Americans, Sikh Americans and South Asian 

Americans. 

Since September 11, the Customs Service and Border Patrol have been at their 

highest state of alert. All vehicles and persons entering the country are subjected 

to the highest level of scrutiny. Working with the State Department, we have imposed new screening requirements on certain applicants for non-immigrant visas. At 

the direction of the President, we have created a Foreign Terrorist Tracking Task 

Force to ensure that we do everything we can to prevent terrorists from entering 

the country, and to locate and remove those who already have. 

We have prosecuted to the fullest extent of the law individuals who waste precious law enforcement resources through anthrax hoaxes. 

We have offered non-citizens willing to come forward with valuable information 

a chance to live in this country and one day become citizens. 

We have forged new cooperative agreements with Canada to protect our common 

borders and the economic prosperity they sustain. 

We have embarked on a wartime reorganization of the Department of Justice. We 

are transferring resources and personnel to the field offices where citizens are 

served and protected. The INS is being restructured to better perform its service 

and border security responsibilities. Under Director Bob Mueller, the FBI is undergoing an historic reorganization to put the prevention of terrorism at the center of 

its law enforcement and national security efforts. 

Outside Washington, we are forging new relationships of cooperation with state 

and local law enforcement. We have created 93 Anti-Terrorism Task Forces—one in 

each U.S. Attorney’s district—to integrate the communications and activities of 

local, state and federal law enforcement. 

In all these ways and more, the Department of Justice has sought to prevent terrorism with reason, careful balance and excruciating attention to detail. Some of our 

critics, I regret to say, have shown less affection for detail. Their bold declarations 

of so-called fact have quickly dissolved, upon inspection, into vague conjecture. 

Charges of ‘‘kangaroo courts’’ and ‘‘shredding the Constitution’’ give new meaning 

to the term, ‘‘the fog of war.’’ Since lives and liberties depend upon clarity, not obfuscation, and reason, not hyperbole, let me take this opportunity today to be clear: Each action taken by the 

Department of Justice, as well as the war crimes commissions considered by the 

President and the Department of Defense, is carefully drawn to target a narrow 

class of individuals—terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists. Our prevention strategy targets the terrorist 

threat. 

Since 1983, the United States government has defined terrorists as those who perpetrate premeditated, politically motivated violence against noncombatant targets. 

My message to America this morning, then, is this: If you fit this definition of a 

terrorist, fear the United States, for you will lose your liberty. 

We need honest, reasoned debate; not fear mongering. To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare 

peace-loving people with phantoms of lost liberty; my message is this: Your tactics 

only aid terrorists—for they erode our national unity and diminish our resolve. They 

give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil. 

Our efforts have been carefully crafted to avoid infringing on constitutional rights 

while saving American lives. We have engaged in a deliberate campaign of arrest 

and detention of law breakers. All persons being detained have the right to contact 

their lawyers and their families. Out of respect for their privacy, and concern for 

saving lives, we will not publicize the names of those detained. 

We have the authority to monitor the conversations of 16 of the 158,000 federal 

inmates and their attorneys because we suspect that these communications are facilitating acts of terrorism. Each prisoner has been told in advance his conversations 

will be monitored. None of the information that is protected by attorney-client privilege may be used for prosecution. Information will only be used to stop impending 

terrorist acts and save American lives. 

We have asked a very limited number of individuals—visitors to our country holding passports from countries with active Al Qaeda operations—to speak voluntarily 

to law enforcement. We are forcing them to do nothing. We are merely asking them 

to do the right thing: to willingly disclose information they may have of terrorist 

threats to the lives and safety of all people in the United States. 

Throughout all our activities since September 11, we have kept Congress informed 

of our continuing efforts to protect the American people. Beginning with a classified 

briefing by Director Mueller and me on the very evening of September 11, the JusVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00322 Fmt 6601 Sfmt 6621 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
317

tice Department has briefed members of the House, the Senate and their staffs on 

more than 100 occasions. 

We have worked with Congress in the belief and recognition that no single branch 

of government alone can stop terrorism. We have consulted with members out of respect for the separation of powers that is the basis of our system of government. 

However, Congress’ power of oversight is not without limits. The Constitution specifically delegates to the President the authority to ‘‘take care that the laws are 

faithfully executed.’’ And perhaps most importantly, the Constitution vests the 

President with the extraordinary and sole authority as Commander-in-Chief to lead 

our nation in times of war. 

Mr. Chairman and members of the committee, not long ago I had the privilege 

of sitting where you now sit. I have the greatest reverence and respect for the constitutional responsibilities you shoulder. I will continue to consult with Congress so 

that you may fulfill your constitutional responsibilities. In some areas, however, I 

cannot and will not consult you. 

The advice I give to the President, whether in his role as Commander-in-Chief or 

in any other capacity, is privileged and confidential. I cannot and will not divulge 

the contents, the context, or even the existence of such advice to anyone—including 

Congress—unless the President instructs me to do so. I cannot and will not divulge 

information, nor do I believe that anyone here would wish me to divulge information, that will damage the national security of the United States, the safety of its 

citizens or our efforts to ensure the same in an ongoing investigation. 

As Attorney General, it is my responsibility—at the direction of the President—

to exercise those core executive powers the Constitution so designates. The law enforcement initiatives undertaken by the Department of Justice, those individuals we 

arrest, detain or seek to interview, fall under these core executive powers. In addition, the President’s authority to establish war-crimes commissions arises out of his 

power as Commander in Chief. For centuries, Congress has recognized this authority and the Supreme Court has never held that any Congress may limit it. 

In accordance with over two hundred years of historical and legal precedent, the 

executive branch is now exercising its core Constitutional powers in the interest of 

saving the lives of Americans. I trust that Congress will respect the proper limits 

of Executive Branch consultation that I am duty-bound to uphold. I trust, as well, 

that Congress will respect this President’s authority to wage war on terrorism and 

defend our nation and its citizens with all the power vested in him by the Constitution and entrusted to him by the American people. 

Thank you.

Chairman LEAHY. No, I think it is important you do, and I again 

appreciate you doing that. 

Senator Thurmond has asked to make a short statement of support, and with no objection from the other members to the senior 

member of this Committee, I would yield to Senator Thurmond. 

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR 

FROM THE STATE OF SOUTH CAROLINA 

Senator THURMOND. Mr. Chairman, I am pleased that you are 

holding this important hearing on the President’s law enforcement 

initiatives in the war against terrorism. This Committee has an important oversight role, and we must ensure that the actions of the 

Government are in accordance with the Constitution. 

Mr. Attorney General, thank you for taking time from your busy 

schedule to be here today. You have done an excellent job of leading the Department of Justice during these difficult times, and I 

thank you for your faithful service to our Nation. 

I believe that the criticism directed towards the administration 

is unfounded. The duty to prevent future attacks is a great responsibility. The President has responded with actions that will protect 

American lives while preserving civil liberties. 

Mr. Chairman, I believe that the policies of the administration 

are reasonable law enforcement tools and are constitutional. The 

efforts of the President and the Attorney General will further our 

318

war against terrorism. I look forward to hearing the testimony of 

the Attorney General today. 

Thank you very much. 

[The prepared statement of Senator Thurmond follows:]

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

CAROLINA

Mr. Chairman: 

I am pleased that you are holding this important hearing on the President’s law 

enforcement initiatives in the war against terrorism. This committee has an important oversight role, and we must ensure that the actions of the government are in 

accordance with the Constitution. 

Mr. Attorney General, thank you for taking time from your busy schedule to be 

here today. You have done an excellent job of leading the Department of Justice 

during these difficult times, and I thank you for your faithful service to our Nation. 

I believe that the criticism directed towards the Administration is unfounded. The 

duty to prevent future attacks is a great responsibility. The President has responded 

with actions that will protect American lives while preserving civil liberties. 

The President and the Attorney General are employing a variety of tools in the 

fight against terrorism, such as the use of military commissions and the current detention of suspected terrorists. I believe that these policies are reasonable law enforcement tools that will further our efforts to rid the world of terrorism. 

President Bush’s military order providing for the trial of foreign terrorists by military commissions has been criticized as an affront to our Nation’s tradition of impartial justice. I disagree with this criticism. Not only is the President’s order historically based, but it is in accordance with current law. Military commissions are 

rooted in American history, from the trial of deserters in the Mexican-American War 

to the trial of President Lincoln’s assassins. The Supreme Court has repeatedly 

upheld the use of military commissions. In Ex Parte Quirin, 317 U.S. 1 (1942), the 

Supreme Court unanimously upheld President Roosevelt’s use of a military commission to try Nazi saboteurs during World War II. The Court also approved the use 

of a military commission to try the Japanese commander in the Phillippines for violations of the laws of war. In re Yamashita, 327 U.S. 1 (1946). 

In addition to historical and legal precedent, Congress has approved, as part of 

the Code of Military Justice, the use of military commissions under the law of war. 

10 U.S.C. δ? 821, 836. Some critics have suggested that the President does not have 

authority under the Code of Military Justice because we are not officially in a state 

of war. However, the murderers who flew commercial airliners into the World Trade 

Center towers and the Pentagon perpetrated nothing less than acts of war. The unimaginable destruction in New York and the damage done to the symbol of American military power are sobering reminders of the acts of war that were committed 

on our soil. 

At this moment, American forces are engaged in a real war against terrorism. It 

is a unique war because al Qaida is a loosely organized group spread throughout 

many different countries. Because the enemy is a shadowy network of international 

terrorists, it is unreasonable to insist that an official declaration of war be made. 

Congress also recently acknowledged, in authorizing the President’s use of force 

against those responsible for the terrorist attacks, that the ‘‘President has authority 

under the Constitution to take action to deter and prevent acts of international terrorism against the United States.’’ Pub. L. No. 107–40, 115 Stat. 224, (2001). Because the President has clearly determined that the use of military commissions 

would serve to prevent future terrorist attacks, he is acting according to Congressionally recognized powers under the Constitution. 

It is important to stress that the President’s military order invokes his powers as 

Commander-in-Chief, which is derived from the Constitution and is not dependent 

upon statutory authority. The President’s powers and responsibilities in defending 

our Country are separate and distinct from his authority to enforce domestic laws. 

The ability to try enemy war criminals in an efficient manner is an important component of our war on terrorism. It is just one part of the President’s war arsenal. 

To fight the war effectively, we must demonstrate that the barbaric actions of al 

Qaida will not go unpunished, and we must disrupt their ability to operate by bringing their members to trial. 

Military commissions are preferable to trial in civilian courts because of the 

unique conditions of war. For example, these commissions would allow for the more 

flexible use of classified information. If such information were disclosed in a civilian 

court, intelligence operations could be seriously endangered. Critics have pointed to 

319

the fact that Federal courts are currently able to handle classified information 

under the Classified Information Procedures Act. 18 U.S.C. app. 3. However, the Act 

provides for the disclosure of classified information under certain circumstances, 

and defense lawyers can use this as a bargaining chip to frustrate the prosecution. 

While this system may be acceptable in domestic law enforcement, it presents serious roadblocks to the effective use of trials as a national security tool. 

Military tribunals would also better protect witnesses and other trial participants. 

Additionally, more flexible rules would allow for the use of evidence collected during 

war. Rules governing the gathering of evidence for use in trial courts in the United 

States do not necessarily apply to evidence gathered on the battlefield. 

I would also like to point out that the President, in issuing this order, does not 

intend to convene commissions that render unfair judgments. On the contrary, the 

order specifies that a ‘‘full and fair’’ trial must be given. If used appropriately, military commissions will be constitutional, lawful, and effective tools in the war 

against terror. It is in fact a testament to our sense of fairness that we are providing trials for an enemy that has a sworn duty to destroy the American way of 

life. 

The detention policy of the Department of Justice has also been heavily criticized. 

I believe that the detention policy is not only necessary for our national security, 

but is also a legitimate use of power under the Constitution. Two aspects of the policy have been highly criticized: the detentions themselves and the lack of public information released on detainees. We have heard the stories of detainees that would, 

if true, cause us concern. We should take these stories seriously, and we must ensure that all detainees have access to lawyers and are treated properly. However, 

we must not allow isolated incidents to lead us to the conclusion that the government is shamelessly violating the civil rights of detainees. 

Congress and the Administration have worked together to fashion a sensible policy on the detention of those charged with immigration violations or criminal laws. 

Once a person is taken into custody, the USA PATRIOT Act provides that the Attorney General may certify that he has reasonable grounds to believe that someone is 

a terrorist or security threat. The Attorney General then has seven days to charge 

the alien with an immigration or criminal violation. Upon the expiration of seven 

days, he must release the alien or charge him with a violation of law. This procedure provides for review in Federal court. 

The Attorney General is using material witness warrants to hold all other detainees. Some critics question the practice of holding people as material witnesses, but 

the government must balance its need for crucial information with the liberty interests of detainees. Furthermore, current law allows for the detention of material witnesses for a ‘‘reasonable period of time’’ under 18 U.S.C. δ 3144. It is important to 

remember that the government’s power of detention is not unchecked. Detainees 

have recourse to review by Federal courts. 

As with the use of military commissions, Congress in this instance should give 

deference to the President’s powers as Commander-in-Chief. The detention of suspects and witnesses serves not only law enforcement objectives but national security 

objectives as well. We are involved in a war against terrorism, and we should be 

sensitive to the national security concerns regarding the detentions. In fact, the Supreme Court has acknowledged that there may be circumstances where national security concerns call for deference to the executive branch’s use of detentions. 

Zadvydas v. Davis, 121 S. Ct. 2491 (2001). 

Some critics have also raised concerns about the Department of Justice’s failure 

to release extensive details regarding detainees. As former Attorney General Barr 

indicated in his testimony before this committee last week, the Supreme Court has 

never interpreted the Constitution to require that all details of a law enforcement 

investigation be disclosed. For example, grand jury proceedings are kept secret so 

that the integrity of a criminal investigation is not tarnished. And even more relevant, affidavits in support of arrest, material witness warrants, and indictments 

are commonly filed with the court under seal if their disclosure would compromise 

an investigation. 

Under current circumstances, detailed information about the detainees could provide crucial information to the cells of the al Qaida terrorist network. If terrorist 

cells operating in this Country were able to determine how their movements were 

being detected, they would adjust their operations in order to avoid the detection. 

We must remember that we are at war, and the United States is still vulnerable 

to terrorist attacks. The United States government has a legitimate need for secrecy 

in its effort to disrupt the functioning of al Qaida. 

There is a misconception that the identities of all charged persons is secret. This 

is not so. According to Assistant Attorney General Michael Chertoff’s testimony before this committee last week, the identity of every person arrested on a criminal 

320

charge is public information. Additionally, the government is not preventing a detained individual from identifying himself. There is nothing to indicate that detainees are being held in secret. 

By not providing a list of detainees to the public, DOJ is actually protecting the 

privacy of the detainees. Because the detention itself is not secret, an individual detainee would not benefit from the publication of his name. In fact, a list could only 

serve to invade the privacy interests of the detainees by making their detention 

available to anyone. If such a list were published, there would surely be criticism 

that this list served no purpose but to smear the reputations of people caught up 

in the investigation. 

Mr. Chairman, I am pleased that we are carefully considering the President’s efforts to fight terrorism. It is important that we fully discuss these issues. I think 

that the Administration has done a good job of developing ways to bring terrorists 

to justice, and I find them to be reasonable tools in the fight to protect the American 

people. I hope that my colleagues will join me in supporting the Administration’s efforts to combat terror.

Chairman LEAHY. Thank you. 

General you have stated that the authority for the Military 

Order arises out of the President’s position as Commander-in– Chief, and the Supreme Court has never held that the Congress 

may limit it. But the fact is that the Supreme Court has never 

upheld the President’s authorities extending so far as to allow him 

to unilaterally set up military tribunals absent congressional authority. 

So basically this is a calculated risk that the Supreme Court 

would uphold something it has not upheld before. I mention that 

because I look at Ex Parte Milligan, for example, which says that 

military tribunals for non-military personnel cannot be justified on 

the mandate of the President because he is controlled by law, and 

his sphere of duty is to execute, not to make the laws, and there 

is no unwritten criminal code with resort to be had as a source of 

jurisdiction, thus raising the very highly questionable—or saying it 

is highly questionable that he could do this absent congressional 

authority. 

Now, there is interest in the Congress in defining what a military tribunal could be, the President, what would be his authority. 

The administration officials have stated the planned scope of military tribunals was far narrower than had been suggested by the 

original Order. More recent assurances that it would be applied 

sparingly have been very helpful. So I wanted to see how the administration would use the Military Order. 

First, as written, the Military Order applies to non-citizens of the 

United States. That would cover about 20 million people here in 

the United States legally today. But the President’s Counsel now 

says that military commissions would not be held in the United 

States but, rather, close to where our forces may be fighting. And 

then an anonymous administration official said there is no plan to 

use military commissions in this country but only for those caught 

in battlefield operations. 

Secondly, while the Military Order is essentially silent on the 

procedural safeguards that would be provided to military commission trials, the White House Counsel has now explained that military commissions would be conducted like courts martial. 

Third, nothing in the Military Order would prevent commission 

trials from being conducted in secret, which was done, for example, 

with the eight Nazi saboteurs after World War II, most often cited 

by the administration. 

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But now Mr. Gonzales says that trials before military commissions would be as open as possible. Mr. Chertoff said something 

similar. 

Now, this is in sharp contrast to the statements before our hearings that quote from the administration, ‘‘proceedings promise to be 

swift and largely secret,’’ with one military officer saying that ‘‘the 

release of information might be limited to the various facts like the 

defendant’s name.’’ Finally, the Order expressly states that the accused in military 

commissions shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, in any court. But now 

the administration says this is not an effort to suspend habeas corpus. 

So now, with the explanations that have come out subsequently, 

I understand first that the administration does not intend to use 

military commissions to try people arrested in the United States; 

secondly, the military commissions will follow the rules of procedural fairness used for trying U.S. military personnel; and, thirdly, 

the judgments of the military commissions will be subject to judicial review. 

Is that your understanding also? 

Attorney General ASHCROFT. Well, you have given me a lot to 

think about with that question. You have spoken a number of 

things that I would like to comment on. 

Chairman LEAHY. Sure. 

Attorney General ASHCROFT. First of all, about the authority of 

the President of the United States to wage war under the Constitution and to address war crimes in the process of waging war, I believe that is clearly the power of the President and his power to 

undertake that unilaterally. 

The Supreme Court did address in the Quirin case 60 years ago 

the issue of war crimes commissions, and in that case, it cited the 

authority of the congressional declaration of war as language recognizing the President’s power to create war crimes commissions. But 

I don’t believe that the Court indicates that—or predicates its assumption and accordance of the President that power upon that 

particular authority. 

Nevertheless, the identical authority found in the article of declaration of war in the Second World War is now the authority 

which is listed in the Uniform Code of Military Justice at 10 U.S.C. 

Section 821. And it is my position that the President has an inherent authority and power to conduct war and to prosecute war 

crimes absent that indication in the Code of Military Justice. But 

for those who would disagree with that, the identical provision authority that was existent and was present in the Quirin situation 

is now present in the U.S. Code of Military Justice. 

Chairman LEAHY. But, General, if I might just for a moment, the 

Quirin case did not address the question of whether the President 

could set up a military tribunal absent congressional authority. 

They did not address that question, and the previous Ex Parte Milligan apparently did. 

But my question still goes to this: Aside from—and understand 

there are members on both sides of the aisle who are willing to 

work with you to try to establish an authority, a congressional auVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00327 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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thority for military tribunals, but in a certain framework. But with 

all the changes and switchbacks and everything else and the statements that have come from different parts of the administration, 

my question is still basically: Does the administration—whether 

these are legal or not, is my understanding correct that the administration, one, does not intend to use military commissions to try 

people arrested in the United States; two, the military commissions 

would follow the rules of procedural fairness used for trying U.S. 

military personnel; and, three, the judgments of the military commissions will be subject to judicial review? Are those three points— is that understanding correct? Is that your understanding? 

Attorney General ASHCROFT. I cannot say that I have that understanding in the way that you have it. I do not know that the 

United States would forfeit the right to try in a military commission an alien terrorist who was apprehended on his way into the 

United States from a submarine or from a ship, carrying explosives 

or otherwise seeking to commandeer an American asset to explode 

or otherwise commit acts of terror in the United States. 

Chairman LEAHY. But not my question, General. 

Attorney General ASHCROFT. Your question asked about people 

arrested in the United States. It would be possible for that person 

to be so arrested. I think—I don’t want—let me just indicate this, 

two points. 

One, I want to mention that Ex Parte Milligan was limited in the 

Quirin case, limited to its facts, and the Quirin case upheld the use 

of commissions in the United States against enemy belligerents. 

And, number two, the President’s Order, which I believe to be 

constitutional, assigned to the Department of Defense the development of a framework that would answer many of these questions, 

and it is premature to try and anticipate exactly what that framework would be, in my judgment. 

I stand ready, as provided in the President’s Military Order establishing commissions to try war crimes, to assist the Department 

of Defense. And, frankly, I would stand ready to convey, if you 

wanted me to be the conduit, to convey suggestions from the Congress to the Department of Defense, although you all have complete 

access to the Department of Defense for the achievement of those 

purposes. 

Chairman LEAHY. Just so members of the Committee will understand, originally—and I am advised that we are going to have 

three votes beginning at 11:00 on three Federal judges, one being 

a court of appeals judge, the other two being district judges. I have 

asked—I have sent word to the floor and asked if they might do 

by voice vote the two district judges because they were both ones 

that we voted unanimously to pass out of the Judiciary Committee. 

The Court of Appeals would be then done by roll call, and if that 

procedure is followed, which I understand they will, we would not 

have that first vote until 11:40. 

With that, I yield to Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. 

General Ashcroft, some have questioned the continuing validity 

of Ex Parte Quirin, that case’s authority for further Presidential orders establishing military commissions. On the other hand, that 

case was unanimously decided by the eight Justices who heard it. 

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Further, the Supreme Court reaffirmed Quirin just 4 years later 

in In Re Yamashita, and in both cases, they followed the historical 

practice since our country’s founding. 

Now, given the case law, the historical practice, and Section 821 

of Title 10 of the United States Code, which continues to expressly 

recognize military commissions, passed by Congress, is it your view 

that the current United States Code is sufficient legal basis for the 

President’s Military Order? 

Attorney General ASHCROFT. It is my view that the United 

States Code of Military Justice as enacted by the Congress provides 

the same kind of support it provided or the articles provided relied 

upon in the Quirin case, so that if one were to come to the conclusion that the President is absent the power without congressional 

authorization, then one clearly has a Supreme Court opinion that 

indicates that such power is existent in statute. 

I do not have the view, however, that the President needed that 

in order to have such commissions, and I don’t believe that the 

Quirin case indicates that either. So that we come to a place of perhaps a disagreement without a difference. In either event, the 

President has the authority to constitute military commissions for 

the trial of crimes of war, and I think that is very important. These 

commissions by the Order will be full and fair proceedings. The Department of Defense has been asked to construct a framework for 

conducting full and fair proceedings, and I believe— Senator HATCH. And the Order suggests that all other agencies 

of Government cooperate with the Department of Justice. So I presume your agency will cooperate with the Department— Attorney General ASHCROFT. We would be pleased to render any 

assistance to the Department of Defense when they— Senator HATCH. Department of Defense, yes. 

Attorney General ASHCROFT. —if they were to call upon us, and, 

frankly, it is expected that we would be standing ready for that responsibility. 

Senator HATCH. The Executive Office of United States Attorneys 

reports that for fiscal year 2001 the conviction rate of civilians 

tried on criminal charges in Article III courts around the country 

is 91 percent. In the Southern District of New York, the conviction 

rate is 97.2 percent. Given that the conviction rate of the military 

commissions used after World War II was approximately 85 percent, do you think there is any basis for prejudging military commissions as unfair to defendants, or somehow that they lack the 

constitutional safeguards or would lack the constitutional safeguards, although admittedly, not all of the additional rights that 

some of the extreme interpreters would wish to grant to criminals, 

even terrorist defendants? 

Attorney General ASHCROFT. Well, it is pretty clear that military 

commissions for the litigation of war crimes, international commissions to litigate war crimes, are not uncommon. As a matter of fact, 

the United States Senate has indicated that it supports them 

where Bosnians were abused as a result of war crimes. We have 

supported the use of military or war crimes commissions to litigate 

those wrongs about war crimes committed by the perpetrators of 

those horrific acts. Now, whether we are talking about Rwanda in 

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cally to Nuremberg and the trials there and the additional war 

crimes tribunals after there, these have been full and fair proceedings. They have been understood by the Congress of the United 

States to have been full and fair and have been supported by the 

Congress. As recently as two years ago, the Congress of the United 

States voted 90 to nothing—pardon me—the Senate of the United 

States voted 90 to nothing that Milosevic should be tried in a war 

crimes commission. So this is not an unusual way to resolve war 

crimes committed in time of war. 

Senator HATCH. General, some recent press reports have suggested that the Department has forced the FBI to abandon its longterm investigations and its historic approach to investigating 

counter-terrorism. I would like you to comment on this and explain 

what change or changes if any the FBI has made to its mission. 

And on this issue, I would also like to read excerpts from a letter 

to the ‘‘Washington Post’’ from a former FBI agent that intends to 

set some of these recent misrepresentations straight. This letter 

says: ‘‘In regard to the article entitled ’Ex FBI Officials Criticize 

Tactics on Terrorism’ by Jim McGee, printed in your newspaper 

November 28, 2001,’’ he offers the following comments. And let me 

just read a few, and I will put the letter in the record. 

‘‘The article quotes me out of context.’’ Now, I had better get the 

name here. The name is Oliver B. Revell, ‘‘Buck’’ Revell. ‘‘The article quotes me out of context, and therefore conveys an inaccurate 

portrayal of my views on the current FBI and Justice Department 

efforts in the aftermath of the September 11th terrorist attacks. 

First, I believe that the FBI associated law enforcement agencies 

in the Justice Department are doing a very good job under difficult 

circumstances. Two, the terrorist attacks and subsequent anthrax 

incidents have presented our law enforcement agencies with the 

most difficult problem that they have had to face in their entire 

history.’’

And he goes on through the rest of this letter. So, again, could 

you comment on this and whether or not the FBI and the Justice 

Department are using the appropriate investigatorial techniques 

that have been long used, and/or whether you have to use those 

plus additional ones to be able to get the job done in protecting the 

American people? 

Well, can I ask unanimous consent that that letter go in the 

record? 

Chairman LEAHY. Of course. 

Attorney General ASHCROFT. Very frankly, we have set as a priority the prevention of additional terrorist attacks, and we do not 

ever want anything like September 11th again to visit the United 

States on our own soil with innocent victims. And we hope to improve our performance regularly by making whatever changes we 

can to upgrade our ability to detect and to prevent terrorism, to 

disrupt it and to make it difficult, in fact, impossible. So we will 

do what we can to learn from the past, and we will implement new 

strategies to protect America in the future. We did not have the 

kind of protection we needed on September 11th. So for us to continue and to act as if no changes would be appropriate may not be 

in our best interest. 

325

It is with that in mind that we will use whatever new techniques 

we can develop, and we will try and be open to suggestions from 

the American people, from the Congress, and to those who have 

served the Bureau in the past, and those who now serve the Bureau. Our objective is to secure American liberty and to protect 

American lives. 

Senator HATCH. Thank you, Mr. Attorney General. 

Chairman LEAHY. Thank you. I have a number of other items 

also for the record, and without objection, they will be submitted 

for the record. 

Senator Kennedy. 

STATMENT OF HON. EDWARD KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much. Thank you. 

General like Senator Leahy, I am profoundly concerned about the 

administration’s broad plan on the military tribunals, and the plan 

raises extremely serious questions about fundamental civil liberties, questions that have not yet been satisfactorily answered by 

the administration’s officials defending it. History has shown that 

the military courts have been effective, but they have also shown 

that they have been abused, and this time we want to try and get 

it right. And it is of profound importance to the country that we 

defend our ideals and our security. 

President Bush’s Executive Order is a broad proposal that has 

enormous potential for abuse. There are few if any due process 

rights granted to defendants and trials may occur in complete secrecy. So constitutional experts have told us, however, that we can 

implement fair military trials that ensure fundamental civil liberties. We know it can be done. We know it should be done, but 

we have not heard that it will be done. 

So I am interested in what steps are being taken to give the 

meaning to the principle, which you have referenced here yourself 

this morning, of full and fair military tribunals and how the administration will work with the Congress to protect the constitutional ideals, and when will we hear about this? What can you tell 

us about the scope? 

Attorney General ASHCROFT. Well, I am pleased to say that the 

President’s Order requires that there be full and fair proceedings. 

Those are the kinds of descriptive terms that have governed the development of war crimes commissions and that govern the proceedings of war crimes commissions that operate today. The President has ordered—and it is a Military Order to the Department of 

Defense. It is out of his responsibility as Commander-in–Chief of 

a nation in conflict that he ordered that the Defense Department 

develop a framework that would provide full and fair proceedings. 

There are, obviously, some hints in the President’s Order that indicate a level of fairness that I think is clearly understood. He has 

indicated that the hearings should be closed when it is in the national interest to close them, and I think the administration has 

made clear its desire not to close hearings when they are not in the 

national interest. 

It is to be noted that every judicial or adjudicatory process that 

I know of has some provision for closing hearings to protect the 

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system and to protect the integrity of the operation. Our courts 

provide for sealed orders. They sometimes even have gag orders. 

They have, in certain areas, plans to protect the identity of witnesses. Similarly, the ongoing war crimes efforts in the Hague that 

relate to war crimes have those kinds of similar procedures. I believe that the Department of Defense, which has over 3,000 active 

full-time working lawyers, and which conducts a wide variety of 

military operations that relate to the adjudication of charges, has 

the capacity to develop a plan and framework that will work effectively, and I expect it to do so, will stand ready to assist them in 

doing so. 

Senator KENNEDY. Can you give us some idea when that will be 

announced, and can you be any more precise in terms of the scope, 

or is that the way you want to leave it? 

Attorney General ASHCROFT. Well, Senator, I cannot, and I just 

do not have specific information about the timeline. I would mention that the time of this setting is one where the President has 

sought to create a tool to protect American lives through his conduct of this war, and to create it in advance, and to make it known 

to the Congress and to the people of this country, well in advance 

of any demand for its services. In the Roosevelt Administration 60 

years ago we did not have the luxury of that kind of commentary, 

and I am sure contributions made by the Congress and those in the 

culture would be welcomed by the Secretary of Defense. 

Senator KENNEDY. I would have liked to have gotten into the 

questions on the administration’s automatic stays of immigration 

judges’ release orders and the attorney/client communications, but 

let me, in the time that I do have left, just get into one area. And 

that is in reference to the ‘‘New York Times’’ story this morning. 

Last month a manual entitled ‘‘How Can I Train Myself for 

Jihad’’—it is a manual very similar to the one that you mentioned 

here—was found in a terrorist safe house in Kabul. It states in 

other countries, and in some states of the U.S., it is perfectly legal 

for members of the public to own certain types of firearms. If you 

live in such a country and obtain an assault weapon legally, prefer 

AK–47 or variations, you can learn how to use it properly and go 

and practice in the areas allowed for training. In September a Federal Court convicted a number of members of the terrorist group 

Hezbollah on 7 counts of weapon charges and conspiracy to ship 

weapons and ammunition to Lebanon. He had purchased many of 

the weapons at gun shows in Michigan. We have been trying to 

deal with this problem for many months. A potential terrorist can 

walk into a gun show, walk out with a gun, no questions asked. 

The report in today’s ‘‘New York Times’’, that ‘‘officials at the Department of Justice refused to let the FBI examine its background 

checklist to determine whether any of the 1,200 people detailed following the September 11th attacks recently bought guns.’’

Why is the Department handcuffing the FBI in its effort to investigate gun purchases by suspected terrorists? 

Attorney General ASHCROFT. Than you, Senator, for that inquiry. 

The answer is simple. The law which provided for the development 

of the NIC, the National Instant Check system indicates that the 

only permissible use for the National Instant Check system is to 

audit the maintenance of that system, and the Department of JusVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00332 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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tice is committed to following the law in that respect. And when 

the—

Senator KENNEDY. Do you think it ought to be changed? 

Attorney General ASHCROFT. When the request first came, obviously, the instinct of the FBI was to use the information to see. 

When they were advised by those who monitor whether or not we 

are following the congressional direction, we stopped, and I believe 

we did the right thing in observing what the law of the United 

States compels us to observe because the list has— Senator KENNEDY. Do you think it ought to be changed in that 

provision? The FBI obviously wants that in order to try and deal 

with the problems of terrorism. Do you support it? 

Attorney General ASHCROFT. I will not comment on specific legislation in the hypothetical. 

Senator KENNEDY. Would you submit legislation to do what the 

FBI wants to have done; would you work with the FBI and submit 

legislation to deal with this issue? 

Attorney General ASHCROFT. I will be happy to consider any legislation that you would propose. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Kennedy. 

And, Senator Grassley? 

Senator GRASSLEY. Thank you, Mr. Chairman, and welcome to 

our former colleague. 

In the Quirin case the Supreme Court held that the Nazi spies 

were defined as unlawful belligerents. As such, the Court held that 

they were subject to the laws of war with trial by military tribunal. 

By the same token, would a member of al Qaeda be classified then 

as an unlawful belligerent? 

Attorney General ASHCROFT. Quirin demonstrates the fact that 

there is what is called habeas corpus review, even of military commissions, and this is this question, but the Court clearly, using the 

language of the Roosevelt Administration, to bring the war crimes 

commission into effect there, said that it would exercise its habeas 

corpus jurisdiction to decide whether or not the commission was 

constitutional, and secondly, whether the belligerents were actually 

eligible for trial under the commission. 

We would anticipate that the same kind of review by the United 

States Supreme Court, which had been exercised with virtually 

identical language in the Order in Quirin would be exercised by the 

Supreme Court in the order that has been the Military Order for 

war crimes commissions by President Bush. 

Senator GRASSLEY. Well, then al Qaeda members are, quote ‘‘unlawful belligerents’’, unquote? 

Attorney General ASHCROFT. Well, the order indicates that those 

to be tried under the order have to have committed war crimes, 

and I believe that is the test as to whether or not there is an adjudication of someone’s case by the war crimes commission. And 

members of al Qaeda are unlawful belligerents under the law of 

war. The laws of war are different than the criminal laws of our 

culture. They exist outside the criminal codes, but there are offenses that are very clear. For instance, the targeting of innocent 

civilians as targets for destruction, I mean, that is very clear. The 

World Trade Center, not a military target, not part of the command 

328

and control of a military unit. The taking of hostages and killing 

of innocent hostages is a war crime that violates the law of war. 

That certainly was done when innocent individuals were taken hostage aboard airplanes and then brutally murdered when those were 

crashed. So the al Qaeda are unlawful belligerents under the law 

of war. They are not armed forces of any state. They do not bear 

arms openly as normal combatants do, but they are unlawful combatants because they secret themselves and because they conduct 

acts which are violations of the law of war. 

Senator GRASSLEY. Would the procedural rules that the Secretary of Defense will be drafting, would it be your advice to him 

that they would be less or more than those rights afforded members of our owned armed forces in military tribunals? 

Attorney General ASHCROFT. My view is that the President has 

ordered that there be full and fair proceedings, that they be open 

when possible basically, and closed when necessary to protect our 

interest. It is inconceivable to me that the President would intend 

that those who seek to destroy the American system of liberty and 

rights, would have greater rights than those who are seeking to defend those rights in our military. 

Senator GRASSLEY. The purpose of my question is—am I not 

right on this or maybe my colleagues can correct me—but there has 

been some justification for the President’s action besides the constitutional power of Commander-in–Chief that Congress has given 

the President, some authority under the Military Code of Justice 

in regard to this. So my question comes from that comparison, and 

that point of the President’s power. 

Attorney General ASHCROFT. Well, it is my view that the Congress has recognized the power inherent in the President, both in 

the Articles of War that supported the Roosevelt Administration’s 

establishment of the commission in the 1940s, and the Bush Administration’s establishment of the commission most recently. I 

might add that these Presidents are not alone. From George Washington to Abraham Lincoln, to George Bush and to Franklin Delano 

Roosevelt, Presidents have undertaken these responsibilities, and 

they have done so both with and without the specific language of 

the Uniform Code of Military Justice found in the law today. 

Senator GRASSLEY. Could you provide us with more details on 

the constitutional statutory authority supporting the Department 

of Justice’s decision to monitor attorney/client communications? 

The new regulations indicate that procedural safeguards will be 

implemented to prevent abuse of monitors of confidential information. Could you say in detail the specific safeguards as well as how 

the Department plans to implement the new regulation? And also, 

is the new regulation different from current and past Justice Department policies and practices regarding the monitoring of attorney/client communications? 

Attorney General ASHCROFT. I am very pleased to address this 

topic of attorney/client communications. The Supreme Court has 

defined the rights that are involved in this setting in a case known 

as Weatherford v. Bursey, a 1977 case of the United States Supreme Court. In that case the monitoring was unannounced. In 

other words, it was genuinely eavesdropping. The word ‘‘eavesdropping’’ does not define what the United States Justice DepartVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00334 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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ment proposes doing in certain cases now. Eavesdropping would be 

unnoticed, no information given to the inmate or to the lawyer. The 

Department’s first rule would be that you first give notice to the 

individual and to his lawyer. Secondly, this is done by individuals 

who are forbidden to have association with or communication with 

any prosecutors. Thirdly, no information can be used at all that 

flows from the understanding or the auditing of these conversations 

without first being approved by a Federal Judge, unless, fourthly, 

it is information which could help avert a terrorist attack. 

Now, let me go briefly for the reason for this. First of all, there 

are only 16 people out of the 158,000 people in the Federal Prison 

System to whom this order now applies. They are the only 16 people in special administrative procedures. And we are simply, for 

terrorists, who would seek to follow the al Qaeda manual and assist those brothers in their operation on the outside, and continuing 

to perpetrate acts through hidden messages and other signals they 

send through their attorneys, we simply are not going to allow that 

to happen. 

Now, I believe that the safeguards we have crafted fully satisfy 

well beyond the kind of conditions which were sanctioned or at 

least accepted by the Court in the Weatherford case, and it is not 

the intention of this Justice Department to either disrupt the effective communication between lawyers and the accused, but it is neither our willingness to allow individuals to continue terrorist activities or other acts which would harm the American public by 

using their lawyers and those conversations to continue or to extent acts of terrorism or violence against the American people. 

Senator GRASSLEY. Mr. Chairman, I have a statement I want to 

put in the record, and then I have two questions I want to submit 

for answer in writing, and both of them refer to an incomplete letter I have received from you, plus an answer from the FBI that has 

not been responded to yet. 

[The prepared statement of Senator Grassley follows:]

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF

IOWA

Thank you, Mr. Chairman. I’d also like to welcome the Attorney General and to 

thank him for his testimony today. This series of hearings is designed to explore 

the constitutional and legal authorities behind the recent Administration’s policies 

involving military tribunals, alien detention, and the monitoring of attorney-client 

communications. Congress has oversight responsibility of these policies, and the 

public has the right to know what these policies are and whether they comply with 

the law of the land. I think we’d all agree that there needs to be a proper balance 

between the real and pressing need for enhanced national security after the September 11th attacks and the protection of our civil liberties. 

President Lincoln reminded us during the Civil War that the security of the nation is the basis upon which the exercise of all other rights depends. The Constitution, by design, appreciates and accommodates this principle. Article II vests in the 

President the broad responsibilities and powers of the Commander-in-Chief of the 

armed forces, and the chief law enforcer through the Office of the Attorney General. 

At the same time, the broad legislative powers of the Congress in Article I and the. 

judicial powers of review in Article III of the- Constitution .provide the kind of 

checks and balances that are the hallmark of our government. 

I realize that these are basic principles that everyone understands, but they are 

principles that we need to be reminded of, particularly when circumstances such as 

the current war against terrorism test the strength of our Constitution. 

Earlier this week, we heard testimony by the Justice Department, some prominent legal experts, as well as individuals who were affected directly by these new 

policies. As we reviewed the President’s executive order and the Administration’s 

330

policies, it’s clear that the President has the legal authority to do what he’s done 

so far. The Supreme Court has upheld the use of military tribunals as constitutional, and these tribunals have been used many times before in a fair manner. Furthermore, I think it is a fair point that we should not be providing more and special 

protections to non-citizens as compared to our own military people who are subject 

to military proceedings. The President’s executive order on military tribunals is specifically limited as to whom it would apply. We should allow President Bush to have 

the option of military commissions as a tool in the fight against terrorism. And 

while I would have liked to have had more information on the Administration’s policies as they were crafting them, President Bush did not need the express consent 

of Congress to take the actions that he did. We’re at war, and our President needs 

to be able to act quickly. 

At this time we must be prepared to ask hard questions. In fact, I understand 

and appreciate the concerns expressed by my colleagues and others. These trying 

times don’t justify violations of the Constitution or our laws. I still want to hear 

more about the Administration’s policies regarding the treatment of detainees and 

the monitoring of attorney-client communications. But it appears that the actions 

by the Administration are based on strong legal authority. 

As I’ve said, it’s the responsibility of the Congress and this Committee to ask 

questions about the appropriateness of these policies, and we need to take this responsibility seriously. So I’m glad that Attorney General Ashcroft is here today to 

give us more insights into the Administration’s policies and to provide us with assurances that they are in compliance with the Constitution and our laws. 

As an aside, one of the key voices absent from these hearings is that of the thousands of law enforcement officials deployed across the country immediately after the 

attacks of September 11th, the agents in the field trying their level best to protect 

the American public. I think that these brave men and women are doing everything 

they can to prevent any other heinous terrorist attacks, and we need to recognize 

that they have a difficult job to do. I fully agree with a statement made during one 

of these hearings - we’re dealing with a ‘‘completely different ball game.’’

We need to remind ourselves of the extremely complicated context in which our 

law enforcement officials are operating. What we have is a well-financed, organized 

and committed group that has explicitly declared war on the United States with the 

financial support of various business and non-profit organizations that have been 

able to penetrate and operate in this country. In addition, this group is waging that 

war not through conventional battlefield means, but through attacks on American 

institutions and people wherever they exist. The enemy is here among us now, the 

enemy is hiding on our soil waiting to strike. The goal of these terrorists is not just 

to destroy our way of life, their goal is to take our lives. Thus, it is not only appropriate but necessary that our law enforcement officers perform their job aggressively, albeit fairly and consistent with the Constitution.and the laws. of the nation. 

Mr. Chairman, thank you for holding this hearing.

Chairman LEAHY. Thank you, Senator Grassley, and the record 

will be open for statements of any senators who wish. And of 

course, the Attorney General has been around here long enough to 

know there may well be follow-up questions to be submitted to him, 

and I would—

Attorney General ASHCROFT. Indeed I do. 

Chairman LEAHY. And I would expect your help and cooperation 

in getting those answered, as you always have. 

Attorney General ASHCROFT. I will do my best. 

Chairman LEAHY. Senator Kohl. 

Senator KOHL. Thank you, Mr. Chairman. 

Mr. Attorney General, since the events of September 11th, the 

President and the Justice Department have commanded the trust 

and the support of the American people and the Congress more 

than ever as they prosecute the war on terrorism, and this is as 

it should be. With that trust, however, comes, as you know, responsibility. That responsibility is to make sure that the American people understand and trust the actions that the government is taking, especially when it comes to issues like civil liberties and the 

rule of law. It causes a great deal of consternation in our country 

331

when we hear about Americans abroad who are subject to foreign 

or military courts. We are outraged when we hear that the Americans on trial may not get an attorney, an impartial jury, or even 

a fair chance to defend themselves. So we should never open our 

country to that kind of criticism from abroad. I believe that no one 

should ever doubt that American justice holds the high moral 

ground, and I am sure that you agree. 

Mr. Attorney General, it is with that regard with respect to military tribunals, we, and I believe that you need to do a little more, 

and we would like to help you with that effort. No one believes that 

defendants should receive all of the protections afforded in normal 

proceedings. For example, I do not see a need for the defendant to 

get his Miranda warnings or a jury of his peers, but there are five 

basic principles that I believe should be respected, and I would be 

interested in your response. 

No. 1: At some point we need a clear understanding of who will 

be subject to these tribunals. 

No. 2: The defendants must receive the assistance of counsel in 

mounting a defense, and with that counsel, defendants must be 

permitted timely access to evidence and the right to cross-examine 

witnesses, and have the right to present exculpatory evidence. 

No. 3: If the standard of proof is to be less than ‘‘beyond a reasonable doubt,’’ then it must be at least as high as guilt by ‘‘clear 

and convincing evidence.’’ No. 4: The death penalty must not be imposed simply by a vote 

of majority of the jurors. And 

No. 5: The system must guarantee the defendant a right to a 

meaningful appeal. 

Now, my question to you as the Attorney General of the United 

States speaking to the American people in advance of the rules 

that may come forth from the President as you have suggested, 

what would be your response to those five principles? 

Attorney General ASHCROFT. Well, first of all, these are obviously 

laudable principles as they relate to the adjudication of criminal 

charges against an individual, and I am sure these are the kinds 

of considerations that these kinds of principles will be weighed in 

the deliberations of the Department of Defense. I think a full and 

fair proceeding is very likely to require many of these things you 

have mentioned in the war crimes tribunals which this Congress 

and this country has supported for the litigation of an adjudication 

of war crimes against others. You know, Bosnia and Romania and 

other settings, some of these kinds of principles exist there, and I 

think that it is very important for members of the Congress to 

state their considerations in this regard, and to make them known 

to those officials who will be developing the final rules that exist 

here. I do not know of anything in the Order of the President which 

would preclude the vast majority of the items which you have indicated. The kinds of guidelines which support the war crimes tribunals, for instance, in The Hague, are the kinds that exist in the 

President’s Order to develop the procedures which are now before 

the Secretary of Defense. 

So I would urge you and members of the Committee to make 

these as contributions to the Secretary of Defense, and I believe 

that it is the intention of the Secretary of Defense to fashion a sysVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00337 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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tem which will support the world’s respect for the way in which 

America always conducts justice. 

Senator KOHL. Thank you, Mr. Attorney General. 

Chairman LEAHY. Senator Specter. 

Senator SPECTER. Thank you. 

Attorney General Ashcroft, the regulations which you promulgated for detention of aliens provides that even after the immigration judge orders release, that is stayed by an appeal; and even 

after the appellate tribunal orders release, that is stayed automatically if it is certified to you as Attorney General. But there are no 

standards set forth as to why the person would be detained further. 

There is a generalized requirement that these detention rules are 

articulated for national security, but even after releases by two 

courts, the detention remains automatic without any procedure, establishment or articulation of standards as to why. Should there 

not be some standard? And how do you make that determination 

for continued detention in the face of the two judicial orders? 

Attorney General ASHCROFT. Well, in the cases which prompted 

us to embark upon this procedure, we came to the conclusion that 

it may be necessary for us, from time to time, to ask for the detention of an individual pending the final outcome and adjudication of 

the charges against that individual, and they have to do with national security. 

Senator SPECTER. But what is the standard for detention after 

two judges have ruled that he should be released 

Attorney General ASHCROFT. Well, those judges are part of the 

process that is assigned to the Immigration and Naturalization 

Service function, which is a process which is overseen by the Attorney General, and if the Attorney General develops an understanding that it is against the national interest and would in some 

way potentially violate or jeopardize the national security, then 

those orders are overruled. 

Senator SPECTER. Attorney General Ashcroft, let me ask you to 

supplement your answer in writing. What you have just said is 

very generalized. I would like you to provide to the Committee 

what standards the Attorney General uses and how that ties in to 

the statute which requires release after 7 days. The statute, of 

course, would take precedence over a regulation, but I want to 

move on to another question now, and if you would supplement 

that in writing. 

Attorney General ASHCROFT. I will be happy to do that. The statute reQuiring release after 7 days is, I believe the statute says they 

can be held without charges for 7 days. We are talking about individuals against whom charges remain. 

Senator SPECTER. Well, there appears to me, at least on the face, 

to be some inconsistency, but if you would address that in writing? 

Attorney General ASHCROFT. Would be very happy to do so. 

Thank you for the opportunity. 

Senator SPECTER. Specifying why your decision is to keep him in 

detention after those two judicial orders, I would appreciate it. 

The Constitution provides, Article I, section 8, clause 14, empowering Congress to establish courts with exclusive jurisdiction over 

military offenses. There has been a statute which was referred to 

in the Executive Order, which delegates certain authority to the 

333

President providing that procedures may be prescribed by the 

President by regulations, which shall, so far as he considers practicable, apply the principles of law and rules of evidence generally 

recognized in the trial of criminal cases in the United States District Courts. 

Now, under that statute, there is a pretty plain presumption of 

using the regular rules of law and rules of evidence unless the 

President makes a determination that it is not practicable. When 

you commented that you were not going to notify the Congress 

when you have conversations with the President, I agree with you 

totally. I think that is a privileged communication, and that is the 

same kind of privilege which some of us are looking toward on an 

examination of monitoring attorney/client conversations. Any person of the United States has the same attorney/client privilege that 

the President does, and I appreciate your determination to respect 

that, but we are not really talking about notifying Congress on 

something you talked to the President about. We were talking 

about consulting with the Judiciary Committee. You used the sit 

next to me, right here. 

Attorney General ASHCROFT. It was a pleasure. It is easier on 

that side. 

[Laughter.] 

Senator SPECTER. A pleasure both ways. But you get more than 

5 minutes. 

[Laughter.] 

Attorney General ASHCROFT. What makes you think that is a 

pleasure? 

[Laughter.] 

Senator SPECTER. But the question that I have for you, because 

my red light is on, is given Congress’s congressional authority—and 

this is not your fault—when Assistant Attorney General Michael 

Chertoff testified, he told us that the Department of Justice was 

not even involved in this Executive Order, and that the regulations 

for the implementation go to the Department of Defense, which 

was a little surprising, since it is the Department of Justice which 

has the institutional knowledge and experience. 

I note that in the brochure you passed out, that the Executive 

Order is on paper with the masthead of the Department of Justice, 

but as I understand it, DOJ did not have anything to do with the 

Executive Order. What I would like you to address is your sense 

as to the appropriate relationship between the Judiciary Committee, the Senate, and the promulgation of the Executive Order 

and the rule that the Department of Justice ought to have in the 

rules to implement the generalizations of the Executive Order. 

Attorney General ASHCROFT. That is a very, very interesting 

question. And first of all, I do not believe this is an Executive 

Order. I believe this is an order of the Commander-in–Chief, and 

it is a Military Order. Inasmuch as it is, many times I think a 

number of us have slipped to call it an Executive Order, but the 

President operates in two ways to deal with crime. It is his responsibility in the criminal justice system to have as his administration 

the prosecution of crime. But in his conduct of his responsibility to 

pursue the war powers and to defend the United States in those 

settings, he has the right to call forth, through the Military Order, 

334

the development of a way to adjudicate war crimes which are separate and distinct from the criminal justice system. 

I believe that the President indicated in the Order which he 

issued, establishing war crimes commissions, that practicability— I believe is the word that is in the statute—if it were to be applied 

to this particular commission order, does not exist, which would require adherence to those rules. 

Senator SPECTER. Thank you very much. 

Chairman LEAHY. Thank you. 

General I am advised that what was to be the first of several 

confirmation votes on judges is to begin in about 3 minutes, and 

my request to have anything after the first one be by voice vote 

will be granted. So what I am going to do is take a 10-minute 

break. Senator Hatch and I will go over, as will others, and be prepared to come back and begin immediately at the end of that time, 

and we will go to the Senator from California, Senator Feinstein 

at that time. You would probably like to stretch your legs anyway. 

Attorney General ASHCROFT. Yes, sir, thank you. 

Chairman LEAHY. We stand in recess. 

[Recess from 11:37 a.m. to 12:05 p.m.] 

Chairman LEAHY. Our former colleague, the Attorney General, 

knows that just like 5-minute questions that often are not, 15-

minute roll calls often are not, but I appreciate the senators who 

went over to vote and came back. I have also been told we will not 

have another roll call for a while. We just are about to finish the 

vote on confirming a Circuit Court of Appeals Judge, and we will 

then voice vote other District Judges. 

But Senator Feinstein was next in line, and, Senator, I appreciate you being here and I will yield to you. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Mr. Attorney General, I would like you to know personally that 

I am very supportive of what your Department is doing and what 

you are trying to do. Perhaps as a member of the Intelligence Committee we learn things about what is happening that we cannot 

really disclose, but I am convinced that there is reason for deep 

concern, and there are good reasons for doing what the President 

has proposed. 

It was interesting for me to read through the al Qaeda manual, 

the translation of which you just distributed to us. And so that everybody might know, I just want to read one small part. It is under 

‘‘Principles of Military Organization.’’ And it says ‘‘Missions Required of the Military Organization.’’ ‘‘The main mission for which 

the military organization is responsible is the overthrow of the godless regimes and their replacement with the Islamic regime. Other 

missions consist of the following: gathering information about the 

enemy, the land, the installations and the neighbors; kidnapping 

enemy personnel, documents, secrets and arms; assassinating 

enemy personnel as well as foreign tourists; freeing the brothers 

who are captured by the enemy; spreading rumors and writing 

statements that instigate people against the enemy; blasting and 

destroying the places of amusement, immorality and sin, not a vital 

335

target; blasting and destroying the embassies and attacking vital 

economic centers; blasting and destroying bridges leading into and 

out of the cities.’’

That is a pretty clear statement of military mission. Having said 

that, and just following up on Senator Kennedy’s questioning, I am 

also aware that many people who may well be associated with terrorist organizations, how they buy their weapons, and the manual 

also speaks to that, how to buy these weapons. And you very nicely 

offered to look at any proposal. I would like this afternoon to send 

you a proposal, which Senators Corzine, Inouye, and Reed and I 

will shortly introduce, which is for a universal background check 

for the purchase of weapons, and which is modeled after the Pennsylvania law which I believe was signed by Governor Ridge. I 

would like to ask that you take a good look at that proposal and 

tell me what you think about it. 

Also, having participated in the other hearings, I want to express 

one thought to you. The resolution the Congress passed authorizing 

the President to use force, was quantified, and it was quantified because a country, as in a full declaration of war, is not what we are 

fighting against, so no country was named. But the President was 

authorized to use all military force against the perpetrators of 9–

11 and where that would take him in terms of using that military 

force. 

Now, it may or may not have the same legal standing as a full 

declaration of war, but I think there is room for some problems 

here. So I am of the opinion that we should pass an authorizing 

resolution that really gives you, as the Executive Branch, the authority to do what you need, and also state some things like the 

standard of proof, like whether it is open or partially closed, the 

right to counsel, those kinds of things in that declaration. 

And I have a series of questions, and I will not have time to ask 

them all, about where you stand with respect to precise points that 

would be in that declaration, but I would like to ask one question 

because I think it is the heart of a lot of the concern, at least on 

this side of the aisle. The White House counsel, Alberto Gonzales, 

wrote an Op–Ed for the ‘‘New York Times’’ recently, in which he 

explained some of the legal provisions in the President’s November 

13th Order. And I would like to state this. Mr. Gonzales, and I 

quote: ‘‘The Order covers not only foreign enemy war criminals, it 

does not cover United States citizens or even enemy soldiers abiding by the laws of war.’’

Now, two days ago Ambassador Prosper testified that he interpreted this sentence to mean that only those who commit—and I 

quote—‘‘grave violations that require organization, leadership, promotion of purpose’’ will be tried by a military commission. However, the order is sufficiently broad to leave open the concern that 

this order could cover many people who have a very peripheral relationship to the September 11th attack. 

Does the Order—and this is getting at the intent—does the 

Order only apply to the leaders of al Qaeda and those directly involved in the September 11th attacks and other international terrorist attacks, or will it also apply to those only peripherally involved in criminal activity? 

336

Attorney General ASHCROFT. I think it is, first of all, important 

to note that it does not apply to American citizens, nor does it 

apply to people who violate the criminal law of this country generally. 

Senator FEINSTEIN. What about legal aliens? 

Attorney General ASHCROFT. Legal aliens are obviously subject to 

this Order. But the point is that the commissions were called into 

existence by issuing a Military Order by the President that would 

try war crimes. So individuals who have committed war crimes in 

the context of this time of conflict are subject to this order unless 

they are United States citizens, and technically, in that respect, the 

universe of individuals eligible for coverage is a large number. But 

similarly, every criminal law that we pass in the United States has 

a potential coverage of 280 million people. That is the population 

of individuals. And we see those laws as protecting the 280 million 

people, not putting them in jeopardy. Similarly, I believe the President’s purpose in this war crimes commission, which he has issued, 

and obviously it calls for the right to counsel and things in the 

commission order, it is to protect people, not to place them in jeopardy. And, obviously, the 20 million people in the United States 

that it would protect, even though the fact they would be eligible 

for prosecution here, are people who also fear the kind of terrorism 

that destroyed a number of individuals, not citizens of the United 

States, in the World Trade Center bombing and in the other incidents that related to September 11th. 

It is important that the President’s directive that we have a full 

and fair hearing be reflected in what the Department of Defense 

eventually details as the procedures, and I would—I think it would 

be appropriate for discussion and contribution to be substantial in 

that regard to the Department. 

Senator FEINSTEIN. I know my time has expired. Let me just 

clear this up. You are saying then that the military tribunal will 

only be used for those who would be prosecuted for war crimes? 

Attorney General ASHCROFT. War crimes. 

Senator FEINSTEIN. Thank you. 

Attorney General ASHCROFT. And the order limits the jurisdiction 

of the commission to the commission of war crimes. 

Senator FEINSTEIN. Thank you. 

Chairman LEAHY. It also says those who harbor or assist or anything else; is that correct? 

Attorney General ASHCROFT. When it talks about the trials to be 

conducted, it talks about trials to be conducted for war crimes. 

Chairman LEAHY. General—and I do not expect that you have 

had time to see this yet—but I faxed down to your office yesterday 

some proposed legislation, and I am not asking questions on that 

because it would not be fair, you have just gotten it. But I wish 

you and your experts would look at some proposed legislation. I 

know Senator Feinstein has raised this issue with me, I think several days ago actually, as Schumer and others have, as members 

in both parties of the Armed Services Committee have raised the 

issue. I have to tell you, I think, from a constitutional and historical point, the President, you, the Secretary of Defense and others, 

will be strengthened in your resolve, but also in your abilities, by 

having a congressional mandate and framework for these military 

337

tribunals. Nobody up here has questioned the fact that you can 

have military tribunals, but as an Op–Ed piece in the Post and others said today, very, very special circumstances when they are 

done, but if you have congressional framework, congressional approval, a lot of the questions that are being asked would stop. And 

I really think, as the Senator from California and others have suggested, you should do that. Please take a look at some of the ideas 

I have sent and others will send you, because ultimately we work 

better when we work together. We do not give the best image to 

the rest of the world when we work apart. 

Senator FEINSTEIN. Mr. Chairman, would you just allow me, because the order is a little different from what the Attorney General 

said. The order states: ‘‘To be tried for violations of the laws of war 

and other applicable laws by military tribunals.’’ So you are saying strike ‘‘the other applicable laws.’’ Attorney General ASHCROFT. I believe that the correct construction of the order would indicate that only individuals who had committed war crimes would be subject to the jurisdiction of the commission. 

Senator FEINSTEIN. Thank you. 

Chairman LEAHY. Again, I think that is why we should have it 

laid out very specifically in the law, not by Executive Order, but 

in the law, what is and what is not allowed. 

Attorney General ASHCROFT. I guess I would refer you to Section 

4, part (a). ‘‘Any individual subject to this order shall, when tried, 

be tried by military commission for any and all offenses triable by 

military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law including life imprisonment and/or 

death.’’ I do not think that is instructive. I have been handed something 

that is in response to some other question. 

[Laughter.] 

Chairman LEAHY. General, this is not a game of ‘‘gotcha.’’

Attorney General ASHCROFT. I am informed that it is instructive, 

and this is war crime language. 

Chairman LEAHY. I thought you were going to say you were informed it is a game of ‘‘gotcha.’’ Attorney General ASHCROFT. I will be glad to confer with you on 

this. Thank you. 

Chairman LEAHY. The point is, we are laying down not only a 

legal history, we are laying down a historical history here. So I 

would ask, in reviewing the transcript, certainly if there is additions, changes you want to make, do so, and I say that the same 

for members of the panel. 

The Senator from Arizona has been very patient. 

Senator HATCH. Mr. Chairman, if I could just make one comment 

about that. 

Chairman LEAHY. Not as patient as the Senator from Utah. Yes, 

go ahead. 

Senator HATCH. We have all seen how cooperative the Congress 

is on something as mundane, as simple as a economic stimulus 

package. You can imagine what they would do with this if we—you 

know, I was just amazed, honest to goodness, I was amazed to see 

338

some of the comments of Julian Bond against our Attorney General. Some of the things he says are really quite offensive. 

Chairman LEAHY. We are talking about this— Senator HATCH. Wait just a second. And I am just saying that 

there are differences on these matters, but one difference that I do 

not think anybody can dispute, is that we have had presidential 

military commissions from the time of George Washington, and 

Congress has generally always gone along with them because of the 

need to cooperate and resolve these problems of war. So I just 

make that point for whatever it is worth. 

I would like to put in the record some remarks that I would 

make, and also a report by Cecil Angel, the ‘‘Free Press’’ staff writer, about some of the comments made against our—I think inappropriate comments and very, very inflammatory comments made 

against our Attorney General. I think terrible comments from 

somebody who I believe should be in a position of respect. 

Chairman LEAHY. We have a number of things that will be put 

in the record. Of course, every Senator will be allowed to put whatever they want in the record. 

But, General, please take a look at the legislation we have sent 

down to—this Committee does not deal with economic stimulus 

packages; it deals with the criminal codes and others of this country, and we move pretty rapidly working together on the 

antiterrorism legislation, and we demonstrated we can do that 

when the country’s future is at stake. 

Attorney General ASHCROFT. Under the category ‘‘the staff is always right’’ let me just say that this does say, ‘‘all offenses triable 

by military commission’’ and that is artful language designed to 

mean war crimes. 

Chairman LEAHY. I understand. 

Attorney General ASHCROFT. But I will be happy to go further 

with that and clarify that in another setting. 

Chairman LEAHY. But do take a look at the legislation. I would 

like to have your views on it, the legislation we have sent you. 

Attorney General ASHCROFT. Thank you. 

Chairman LEAHY. Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. I would just note that 

Senator DeWine was here before I was. Are we just going in the 

regular order or— Chairman LEAHY. Oh, I am sorry. 

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

STATE OF ARIZONA 

Senator KYL. I would be happy to defer to Senator DeWine. 

Senator DEWINE. Go ahead. It does not matter. 

Senator KYL. All right, thank you. 

Chairman LEAHY. I am sorry. That was my mistake. 

Senator KYL. All right. I thank the Senator from Ohio. 

I just have three questions. Let me just make a quick comment 

in view of the colloquy that has occurred here before. The Attorney 

General today and Michael Chertoff last week, made it clear that 

the President’s order is pursuant to his authority as Commanderin–Chief directed to the Department of Defense for both the execution of the military commissions, as well as the development of the 

339

rules and procedures for their conduct, that he is perfectly willing 

to pass on any suggestions that we have. This is not a Judiciary 

Committee responsibility or a congressional responsibility, and I 

would hate to think that we would take time out from holding 

hearings on the 100 plus judges that are pending before us, for example, to try to come up with the rules and procedures for conducting these military commissions. It is a Defense Department responsibility, a presidential responsibility, and while I am sure they 

will have the able advice of the Department of Justice, should they 

request it, as the Attorney General has volunteered, it is not something that either we, as a Committee, nor the Congress generally, 

should start getting into at this point in the session, and with all 

of the other business that is pending before this Committee. That 

is my opinion of that. 

Just three questions, Mr. Attorney General. First of all, Senator 

Feinstein’s comment got me thinking about this. Our special forces 

round up a couple hundred of these radical Arabs who we have 

been reading about, who even shoot the Taliban soldiers in the 

back when they think they are trying to flee, they are so tied in 

with the al Qaeda. So they fall into our hands, and it seems to me 

we have got three choices. I suppose what we could say is, ‘‘Here,’’ to the Northern Alliance, ‘‘You take them.’’ And I would hate to 

think about their civil rights in that situation, but that would be 

the easiest thing because military commissions are a lot of trouble, 

but we could also try them before the military commissions. It 

seems to me the third option is clearly not an option, and that is 

bringing them to the United States for Article III trials. 

So my first question is: what your take is really on the need for 

the commissions. We have talked a lot about the potential rules 

and procedures, but why do we need them in the first place? 

Secondly, the point has been raised about the law to be applied 

to U.S. citizens. There already is a United States citizen, a fellow 

by the name of John Walker, who tied up with these Taliban fighters and was recently captured, and there have been questions 

about what will be done with him, and I wonder if you could tell 

us what the Department of Justice, if anything, what the Department of Justice intends to do about the case of John Walker. 

And third, if you would, again because the Defense Department 

is the department of government responsible for the development 

of the procedures for the conduct of the military commissions, you 

alluded to something in your statement I think could well justify 

a lot more comment, especially relating to the oversight authority 

of this Committee, and that is, you have said that the Justice Department is in some respects being restructured to fight this war 

on terrorism. We have a new obligation and a new mandate here, 

and to the extent you would like to edify us about what you are 

intending to do to make us safer, I would appreciate hearing more 

on that as well. 

Attorney General ASHCROFT. Thank you very much, Senator. Let 

me first say why commissions. I believe the President has a duty 

in time of war to see to it that those individuals that are involved 

in whatever war there is against the United States do not target 

innocent civilians. And if we do not impose a penalty to those who 

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340

tion of the law of war. The war crimes commission, ordered by the 

President, now being developed by the Department of Defense, is 

designed to say that attacks on innocent civilians that are not military targets, taking hostages and killing them, are acts of war. 

Now, when we come to those responsible for this, say who are in 

Afghanistan, are we supposed to read them their Miranda rights, 

higher a flamboyant defense lawyer, bring him back to the United 

States to create a new cable network of Osama TV or what-haveyou, provide a worldwide platform from which propaganda can be 

developed? We have judges in the United States now that are constantly protected because of their prior involvement in terrorist 

trials. Can you imagine making a courthouse in a city a target for 

terrorist activity as a result of focusing the world’s attention on 

some trial in the normal setting for these war crimes? 

War crimes are well understood in the international community. 

We have ongoing war crimes tribunals that relate to atrocities conducted against the Rwandans, that relate to atrocities conducted 

against the Bosnians. There have been a few atrocities conducted 

against the United States of America, and I think it’s appropriate 

that we exercise the discipline of a war crimes commission to hold 

those responsible who violated the law of war in that respect. 

Now, you raise the case of an individual said to have been a U.S. 

citizen who joined the other side. I really am not in a position to 

respond regarding any specific prosecution or case or alleged crime 

committed by an American. I would say very clearly that history 

has not looked kindly upon those that have forsaken their countries 

to go and fight against their countries, especially with organizations that have totally disrespected the rights of individuals, that 

make women objects of scorn and derision, that outlaw education. 

That is certainly the case. And I will not belabor you right now 

with a list of the kinds of criminal actions that could be taken in 

the criminal justice system against such individuals. I can tell you 

that no person will be—no citizen of the United States will be tried 

in a war crimes tribunal. The commission order of the President indicates that that is limited to noncitizens. 

Senator KYL. General Ashcroft, did you want to comment at all 

about the restructuring of the Department of Justice for the purpose of protecting? 

Attorney General ASHCROFT. Well, thank you. I believe that 

there is a noble purpose in justice, and that is to prevent crime. 

Whenever we prosecute, we are trying to remedy the absence of 

justice that came when someone’s rights were infringed. And I have 

always said that we are the Justice Department, not just the prosecution department. So we have begun even a more pervasive shift 

toward prevention, finding ways to disrupt and prevent this activity, rather than to try and remediate it, because we know that the 

scare that is left by thousands of people who die in even a single 

terrorist incident is a scar that cannot be remediated, and all the 

prosecutions in the world are not as good as preventing that. So 

if we have a sea change in terms of our effort, it is to try and reconfigure our thinking toward prevention, not just prosecution. 

We are going to be sending people from Washington to the front 

lines in our offices to prevent and to prosecute and to disrupt terrorism, rather than have so many people in Washington, D.C. But 

341

we are going to be learning about how we can additionally deploy 

our resources so as to make sure this does not happen again. This 

is something that is intolerable and unacceptable, and we have got 

to fight to make sure it is not repeatable. 

Senator KYL. I appreciate that. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Thank you, Mr. Attorney General, for the opportunity for all of 

us to ask you questions today. I would like to just start with a general question. There is often an attempt at hearings like this to set 

a room tone at the beginning, to put everything in context, and one 

thing that my good friend, the Senator from Utah, the ranking 

member, said, I believe quoting another Senator, that we ought to 

get off the back of the Attorney General. And in your own statement, you referred to people who scare Americans with ‘‘phantoms 

of lost liberty’’ as aiding the terrorists by eroding national unity. 

I would just like your assurance that you do not consider the 

hearings that we have been holding, under the leadership of the 

chairman, and the hearing today as in any way being too much on 

your back or in any way aiding the terrorists by eroding national 

unity. 

Attorney General ASHCROFT. I am very pleased to repeat what I 

said in my statement, that I was pleased to be here, that I am honored to be here, that we do need reasoned discourse. 

I did indicate that we need reasoned discourse as opposed to 

fear-mongering, and I think that is fair. This is the place where 

reasoning and discourse take place. And we do need to be fair 

enough about this to allow the details to be known. 

When news organizations across America—from all sides of the 

spectrum, I might add—trumpet as a headline, ‘‘Attorney General 

eavesdrops conversations between lawyers and clients,’’ and they 

leave it there, that is a gross misrepresentation about civil rights. 

Senator FEINGOLD. Let me get into the specifics, and I appreciate 

that, and I take your response as certainly suggesting that this 

process is entirely appropriate. 

Attorney General ASHCROFT. Absolutely. 

Senator FEINGOLD. So let me proceed with that. 

Attorney General ASHCROFT. And it includes other hearings held 

to which we have sent members of the Department. 

Senator FEINGOLD. Fair enough. Let me turn, then, to the topic 

of one of those hearings, the issue of the secret detention of hundreds of individuals, most—

Attorney General ASHCROFT. May I just indicate that—and I 

guess I should not interrupt, but ‘‘secret detention’’ is something I 

would like—

Senator FEINGOLD. Let me strike the word ‘‘secret’’ so my time 

doesn’t get used up in the description. 

Attorney General ASHCROFT. Yes, let’s do that. 

Senator FEINGOLD. The detention of hundreds of individuals, 

mostly of Arab or Muslim backgrounds, and many, if not most, for 

minor immigration violations. So far, Mr. Attorney General, you 

have refused to provide a full accounting of these individuals. At 

first you said that the law prevented you from disclosing the identiVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00347 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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ties of the roughly 550 individuals held on immigration charges. 

When I asked Mr. Chertoff last week to cite the law that prevents 

the Department from releasing the information, he confirmed that 

there is no such law. 

You also stated that you did not want to help Osama bin Laden 

by releasing a list of the detainees. Yet you and Mr. Chertoff have 

said nothing prevents the detainees from self-identifying. 

Now, this, it strikes me, just entirely undercuts the argument 

that giving out this information will help bin Laden, because if you 

really thought it would, you wouldn’t permit self-identification. You 

wouldn’t have released the names of 93 individuals who have been 

charged with Federal crimes. 

Moreover, as the hearing the Committee held on Tuesday 

showed, saying detainees can self-identify is sometimes questionable at best. Mr. Al–Maqtari, a former detainee who testified, was 

allowed one phone call of no longer than 15 minutes a week for almost the entire 2 months he was held in detention. 

So I would like to specifically ask you about the right of the people being detained to consult with an attorney. Mr. Chertoff testified before this Committee last week that every one of these individuals has a right to counsel, every person detained has a right 

to make phone calls to family and attorneys. But the right to an 

attorney is meaningless if in practice it is impossible for an individual in custody to contact his attorney. 

And we heard testimony in the Committee Tuesday of at least 

two instances where individuals were unable to speak with their 

lawyers for days or even weeks after they were detained. We know 

that these are not the only such instances. 

Furthermore, it became clear that the roadblocks to individuals’

consulting with counsel not only cause great hardship to the clients 

and violate their rights, but it also hinders the investigation and 

wastes the resources of law enforcement on people who, it turns 

out, have no connection to terrorism. So I would like you to answer 

two questions in this regard. 

Will you commit to this Committee today that the Department 

of Justice will take immediate steps to assure that every detainee 

is made aware of his right to be represented by counsel and made 

aware of organizations or groups that will represent him without 

charge if he can’t afford a lawyer, that counsel are able to locate 

and consult with their clients without difficulty, and that detainees 

are permitted to contact their attorneys as often as they need to 

and receive or return all calls from their attorneys without interference? 

And, second, until the full disclosure requested in my October 

31st letter is made, I would request that the Department of Justice 

determine if any of the people currently held in detention are not 

now represented by counsel. Will you do that? 

Attorney General ASHCROFT. I think I can promise to do virtually 

everything you have said. You have made a pretty particular and 

detailed proposal. You have said that they will be able to return 

every phone call. And there are reasonable limits that I think have 

to be imposed, even on those individuals who have violated the law 

and want to confer with their attorneys. 

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I believe it is the right and will take steps to make sure, again, 

that every detainee understands that we believe it to be his or her 

right that they have counsel. For those for whom government counsel is not provided, in other words, that there is not a governmentfunded counsel, we have a practice of providing a list of pro bono 

counsel, and we have been bringing people of those pro bono counsel into the detention facilities regularly so that individuals who 

are being detained can have an opportunity to see an attorney. If 

they haven’t called them or haven’t chosen to, they still have a 

chance to confer. 

I want to do that, and I do not intend to hold individuals without 

access to counsel, and we will take steps to make sure that we 

don’t. I don’t believe that we are. And I will make available to individuals an understanding of pro bono counsel or free counsel in the 

event that they are not classified as individuals entitled to an attorney at Government expense. 

Let me clarify a couple things, if I might, and I will try not to 

take too much time. 

When Mr. Chertoff was answering the question, he said, ‘‘I don’t 

know that there is a specific law that bars the disclosure of the 

names.’’ That was his testimony. And let me just tell you what the 

frame of reference is when I talk about the law regarding detainees. 

The law varies in relation to the nature of the detainee. If a detainee is a permanent resident but an alien to the United States, 

the law prohibits the disclosure of his name or her name. If the 

person is not a permanent resident but is here on another kind of 

visa or authority, the law recognizes the duty of the Attorney General or the authorities to protect prosecutions and investigations by 

not providing lists of the names. 

These laws are basically summed up in the FOIA legislation, 

which talks about freedom of information, and one of the considerations I have is that the privacy rights of individuals in this setting 

should be respected, that people should not be labeled as terrorists 

while we are still investigating any connections they might have to 

terrorism. 

With that in mind, in addition to protecting from disclosing information about who we have in custody or don’t have in custody as 

a coordinated list, I have refrained from developing a list and, 

frankly, don’t intend to develop such a list. 

You mentioned that each of these individuals has had the right 

to self-disclose their incarceration. Each of these individuals obviously has had the right to contact a lawyer. You cited some who 

have said that their contact hasn’t been with free enough access, 

and I will look carefully into that. I know that one of the individuals that I believe you had at your hearing was an individual that 

I, immediately when I heard that there may have been an irregularity regarding his detention, sent FBI members to his home the 

minute he—when I heard about that, upon his release, and our report was that he didn’t allege a problem at that time. But I am 

eager, was then, remain eager to observe these rights. 

It is with that in mind that I would say that we have detained 

about 563—we have in detention about 563 individuals who are 

being detained on Immigration and Naturalization Service items 

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related to the events of 9/11. We have a total of about 20,000 people detained in the Immigration and Naturalization detention program. We have about 54 people detained on criminal charges, and 

those individuals obviously, unless the court has sealed the nature 

of the charge, there is a public record of their detention, although 

it is not a coordinated list. 

We have detained some other individuals, and I am not at liberty 

to discuss their detentions because they are the subject of material 

witness warrants. 

Senator FEINGOLD. Sorry, Mr. Chairman. I know my time is up, 

but let me just say quickly in response that there still has been no 

law cited for us that suggests that the law prohibits the disclosure. 

We have no citation to that effect, and we are still wondering what 

that is. 

Mr. Chairman, I appreciate the Attorney General describing the 

practice with regard to right to counsel, but I want your commitment, Mr. Attorney General, that everyone in detention will get a 

lawyer and will be able to consult with them. Can you give me that 

commitment? 

Attorney General ASHCROFT. No, I can’t. I cannot force lawyers 

on individuals who refuse lawyers. I can make a lawyer available 

to every person in detention in terms of the availability to lawyers 

for calling them. I am not authorized to provide lawyers to those 

in the INS detention at public expense, but I will promise to do everything—

Senator FEINGOLD. But you commit to making a lawyer available 

to every person in detention? 

Attorney General ASHCROFT. If the lawyers are willing to provide 

service to those individuals and we are helping generate those lawyers, we will do that. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Attorney General ASHCROFT. If I might? 

Chairman LEAHY. Yes, go ahead, General. 

Attorney General ASHCROFT. I would cite Privacy Act 5 U.S. 

Code 552A at (a)(2) and the FOIA 5 U.S. Code 552(b)(6), especially 

as to the prohibition regarding naming legal permanent residents. 

Senator FEINGOLD. You are citing this as a prohibition on disclosing any of the names of those in detention? 

Attorney General ASHCROFT. Not any of the names of those in 

detention. As I indicated earlier, Senator, there is a varying legal 

standard depending on the status of the individual. The prevention 

is on a narrow group of individuals that are permanent residents. 

The authority not to disclose relates to those who are not permanent residents, but disclosure of which in the judgment of law enforcement authorities would be ill-advised as it relates to aiding 

the enemy or interfering with a prosecution. 

Senator FEINGOLD. Mr. Chairman, I would simply add that this 

confirms that there simply is no blanket prohibition in the law of 

disclosure, and I would just like that on the record. 

Attorney General ASHCROFT. I can agree with the Senator and 

would stipulate to the fact that there is no blanket prohibition. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you both. 

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Senator DeWine? 

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

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, thank you. 

Mr. Attorney General, thank you for your testimony, and thank 

you for the good job that you are doing for our country. 

We had the opportunity in this country for the last several weeks 

to have a spirited debate about military tribunals. I think after 

that debate it is clear, after your testimony it is clear that military 

tribunals are constitutional, that there is certainly historic precedent for doing it. 

I think also it is clear that in certain limited cases, you do have 

the need in this country to protect the trier of fact, judge or jury, 

witnesses in some cases, and I think it is also clear that in some 

cases we have the need to protect intelligence sources and intelligence information. 

I would, though, like to talk for a moment with you about—and 

I understand that it is not your Department that is putting out the 

protocols and writing the rules, but I again assume that you will 

have some input into that. 

I would like to talk a little bit about some of the public policy 

issues and public policy concerns that I have and foreign policy 

concerns I have about the use of military tribunals. 

We have every day in this world hundreds of thousands, maybe 

millions of U.S. citizens who travel or who live in other countries. 

I think we have to be concerned about the perception of what we 

are doing, not just the reality of what we are doing. I certainly 

have confidence in this administration in doing it correctly, but I 

think also the perception is very, very important. 

So I would certainly hope that when the administration comes 

out with the protocols, in addition to what has already been stated, 

that there would be some other things that would be very clear: 

one would be very clear guidelines as to the rules of evidence; second, that the rules would provide very clear standards of proof and 

burden of proof, ultimate burden of proof that would have to be 

met before someone could be convicted; third, I would hope that 

there would be a provision for a review, a final review of the verdict beyond the initial court or the initial trier of fact; and, fourth—

and certainly not least—is that I would hope that these would be 

held in public, in the open, they would be as open as possible unless there is a compelling reason for their closure. 

Tribunals throughout history certainly of the last century and 

into the current century have provided an opportunity for mankind 

and for civilization to advance. We all cite and think about, I guess, 

the Nuremberg trials, controversial with some people at the time, 

but I think as we look back, those hearings, those trials, we look 

back as an advancement in civilization, that we do, in fact, hold 

people accountable for what they do, but we do it in the right way 

and we do it, when possible, in a public way. 

So I think these are tools for us to advance, tools for us to learn, 

and tools for us to teach. One of the great things this country 

teaches and one of the great things that we export—when we talk 

about what we export, I think the greatest thing we export is the 

346

rule of law. And we see it in—and you have traveled to foreign 

countries, I have traveled, and we do a great job in trying to convince people that if they really want to advance, if they want to 

protect rights, if they want to have advancement in civilization, 

they will, in fact, have the rule of law. 

And so I think we just need to be very, very careful as we approach this. I think it has been demonstrated, the need to have 

these, but I think it has also—in each particular case, I will take 

the President at his word, he will make the decision, and in each 

case there will be, I would hope, a very compelling reason—a compelling reason to have a military tribunal and a compelling reason 

to go beyond that if they have to be closed, a compelling reason to 

close those particular hearings. 

Let me just ask you a question, and I will let you comment if you 

could. I am learning after a few years in the Senate how to do this. 

You get all your comments in, and then you give the witness the 

opportunity to comment right as the red light comes on. 

It is clear, based on, I think, what we have read and based upon 

good common sense and some of the things that you have said 

today, that there has to be have been a fundamental shift in how 

the Department operates and what it sees as its mission. And I 

don’t want to put words in your mouth, but we would all, I think, 

assume that there has been some change in the mission and the 

change has to do with the protecting of the United States citizens 

against future terrorist activities. 

With that change, as you look at the future of the Department, 

doesn’t that mean that there will be some things that you simply 

will not do as well or you simply will not be able to emphasize as 

much? And maybe you have not had a chance to sit back and think 

about this or do the long-range planning, but it seems to me that 

as a country, as a Department, as an administration, and ultimately as this Committee that has oversight, that is something 

that we have to think about as a people, the mission of your Department, which I think, I will say, at least, fundamentally had to 

change after September 11th. 

Your comments? 

Attorney General ASHCROFT. I thank the Senator. Not only is the 

red light on, but it is flashing. 

I am glad you mentioned the rule of law. I can’t think of a more 

savage interruption and disruption and violation of the rule of law 

than the events of September the 11th. They are war crimes, and 

to fail to prosecute war crimes is to reinforce the idea that somehow we can forget about the rule of law. 

I believe we need to send a message to the world that America 

does not tolerate the disruption of the rule of law, the slaughter of 

innocents, war crimes. So I think the President has a duty, a solemn duty, to constitute a commission to resolve the war crimes 

issue. 

It is not as if war crimes issues are not a part of the everyday 

discourse of the world seen by our allies and our enemies alike. I 

think a number of members of this Committee have visited the 

Hague and have actually witnessed proceedings, which I would be 

surprised if they are not ongoing today, where atrocities against 

other nations are being remedied in a war crimes tribunal setting 

347

that has very similar language and structure to the language and 

structure proposed by the Order of the President. 

This Order of the President talks about openness. It talks about 

evidence needing to have probative value. It talks about the kinds 

of votes that would have to be taken in order to make sure that 

a verdict is appropriate. 

And I believe the Order signals enough in terms of respect for 

those rights of the accused that the Department of Defense will act 

appropriately and be—as a matter of fact, I expect it to. I just want 

you to know that I believe that there are fundamental rights at 

stake here, and it is the right of the American public to expect not 

to be abused by war criminals and that the President has a duty 

and responsibility, in his words, I think, to bring them to justice 

or to bring justice to them. And this is a part of getting that done. 

Senator DEWINE. Do you want to take a crack at the second part 

of the question? 

Attorney General ASHCROFT. It is said that those organizations 

that have too many priorities express no priority at all. I recently 

totaled up the way the Justice Department has grown, and I have 

found that in our records we had stated that there are 56 priorities 

for the Department of Justice. 

Chairman LEAHY. You may want to submit all 64 for the record, 

General. 

Attorney General ASHCROFT. Pardon? 

Chairman LEAHY. Feel free to submit the 64 for the record. 

Attorney General ASHCROFT. I said 56. 

Chairman LEAHY. Oh, 56. You can submit them for the record. 

Attorney General ASHCROFT. That is inflation for you. 

[Laughter.] 

Attorney General ASHCROFT. But, anyhow, it might as well be 64. 

If you try to do everything, perhaps you can’t do anything well. 

It is pretty clear to me that there are some things that we might 

not do well, but we better do well the job of preventing, as well as 

possible the job of preventing terrorism. 

Now, I have some reticence about saying that because preventing 

terrorism is a very difficult job. We witnessed this week the carnage in Israel. It is a society that has far fewer freedoms than we 

do and a far greater investment in terrorism detection and prevention, and yet 25 innocents were slaughtered in Israel this last week 

in terrorist activities. 

So it is with that in mind that it is an awesome mandate to try 

and focus our energy, and there may be some things we won’t do 

at the same level of priority we did before because we understand 

that saving lives is the highest priority. 

Senator DEWINE. Thank you. 

Chairman LEAHY. Thank you. 

Senator Schumer? 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman, and thank you for 

holding these hearings. And I want to thank you, Mr. Attorney 

General, for being here, and we understand the large job you have 

348

ahead of you and appreciate all your efforts, whether we agree with 

all of them or not on that behalf. 

Let me say that you gave a strong, eloquent statement about the 

danger before us when you opened and how you needed to get 

every tool that you could to fight terrorism. I think that is something that most Americans in one degree or another would agree 

with. 

But it seems to me that there is one place where you are not 

seeking that tool at all, and that is the right of illegal immigrants—or whether, to find out whether illegal immigrants have 

guns, particularly the people on your detainee list. 

Now, there was an article in the New York Times that said that 

the people in the FBI want this power, want this ability, and the 

Justice Department has overruled them. I was troubled to read 

that when the FBI ran an initial check as to whether some of these 

detainees, 186 of them, had purchased guns, that two had, and 

when the ATF checked its database, they found out that 34 had 

purchased guns. 

I don’t have to tell you that for all illegal immigrants, and for 

most legal immigrants, they have no right to a gun. And this would 

seem to somebody, to most with any knowledge of law enforcement 

to be an important tool that you could use in helping make us safe. 

And so my questions are going to be all about this because I am 

little befuddled. We are looking for new tools in every direction. I 

support most of those. But when it comes to the area of even illegal 

immigrants getting guns and finding out if they did, this administration becomes weak as a wet noodle. And the question is why and 

how we can change that. 

So I would like to ask you a few questions about that. I would 

note that most people read the law to allow you to do this right 

now. In the Federal Register of November 25, 1998, it says, ‘‘Routine Use C’’—C is the category that deals with this—‘‘provides the 

necessary authority for further coordination among law enforcement agencies for the purpose of investigating, prosecuting, and/or 

enforcing violations of criminal or civil law or regulation that may 

come to light during NICS operations.’’ That seems pretty clear. 

And so I just want to ask you a couple of questions about that. 

The first is: Do you believe that you do not have the right right 

now to ask for checks? We ask for checks of these illegal immigrants’ immigration status, and we look at have they violated other 

laws. Do you believe you don’t have the right to ask, to check 

whether they have purchased a gun illegally? 

Attorney General ASHCROFT. I believe I could ask an immigrant 

whether or not he or she has purchased a gun illegally. I don’t 

think there is any problem with me asking any citizen whether or 

not they have purchased a gun illegally—

Senator SCHUMER. Do you believe—

Attorney General ASHCROFT. —or a permanent resident alien or 

an illegal alien. 

Senator SCHUMER. Do you believe—then if you could do that, is 

there anything wrong with checking the database you now have, 

the NICS system, to see if they have done it, to see if they are telling the truth? 

349

Attorney General ASHCROFT. It is my belief that the United 

States Congress specifically outlaws and bans the use of the NICS 

database, and that is the of approved purchase records for weapons 

checks on possible terrorists or on anyone else, that the—

Senator SCHUMER. I would say most, in all due respect, Mr. Attorney General, most disagree with you. But let’s just assume that 

is the case. Why didn’t you ask us for—you asked us for a whole 

lot of things in the anti-terrorism bill, a whole lot of different 

things that you said new circumstances required us to need. A, 

why didn’t you ask us for that authority if you believe you don’t 

have it? Which most people do. And, B, would you support legislation that I will drop in tomorrow to give you that authority? 

Attorney General ASHCROFT. Well, I would be very pleased if you 

would send me legislation. I will review it. If Congress passes a law 

to help us fight terrorism by keeping guns out of the hands of illegal aliens and other individuals that should not have guns in their 

possession, I will fight to sustain the law—

Senator SCHUMER. Right, but in all due—

Attorney General ASHCROFT. —and I will enforce the law. 

Senator SCHUMER. In all due respect, sir, I am asking you a 

slightly different question—two slightly different questions. Number one, why wasn’t this asked for in the counter-terrorism bill, a 

bill I supported—in fact, I took your side against my chairman on 

some of the issues there. Why didn’t we ask for it then if it was 

at least ambiguous? And, B, why not support it right now? I appreciate the fact that you would review it if I sent it to you, but let’s 

assume that it is very simple legislation that simply allows NICS 

checks of illegal immigrants, of those, for instance, that you have 

detained. Why can’t you just tell us right now that you would support such legislation? It seems perfectly logical to do. It seems, as 

you said—and I agree with you—that illegal immigrants here don’t 

have more rights or even the same rights as American citizens. 

Why couldn’t we just make that simple proposition and solve this 

problem right now? Because at least according to the New York 

Times—and I realize the difficulty in dealing with unnamed 

sources—there are large numbers of people in your own FBI who 

believe that would be a very important power for them to have. 

So, again, would you be willing to support such legislation or the 

concept? I am not saying—we could draft it together. 

Attorney General ASHCROFT. I will say again to you that I don’t 

want to make a commitment to legislation without seeing it. If you 

will send me legislation like that, I will review it. And I would, 

upon passage by the Congress of the United States, enforce it vigorously. The only—

Senator SCHUMER. Just one final—I am sorry. 

Attorney General ASHCROFT. May I? 

Senator SCHUMER. Please, please. 

Attorney General ASHCROFT. The only recognized use now of approved purchaser records is limited to an auditing function, and I 

believe that my responsibility, which was rather forcefully provided 

to me as admonition as I took this job and took the oath of office, 

is to enforce the law. And I believe that the law prohibits in its current state any other use of approved purchaser records. That is a 

350

sub-category of data used by the FBI. So if you will send me legislation, I will review it, and we can confer about it. 

Senator SCHUMER. But you are certainly allowed to use the system because these people don’t have the right to have a gun. 

Attorney General ASHCROFT. I believe that the United States 

Congress, in enacting the law which created this database, limits 

the lawful use of this database, and I believe that it is my responsibility to live within the law.I don’t want to hear two messages from 

this Committee, both in the same day, or on a variety of different 

days, not that you want me to enforce some laws and not other 

laws, and you want me to ignore laws or respect some rights and 

not other rights. 

I am very pleased to tell you that if you send me the legislation, 

I will review it, and if you pass the legislation, I will enforce it. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Senator HATCH. Mr. Chairman, if I could just make one comment. As one of the authors of the NICS legislation, which everybody admits has worked very well, one of the biggest parts of the 

debate was whether or not you could disclose matters in NICS because one side felt that if you did, it would be wrong; the other side 

felt if you did not, it would be wrong. And it got into a big mishmash there, and so that is why the legislation turned out the way 

it is. But I will be interested in whatever the Senator suggests. 

Attorney General ASHCROFT. My staff has added a piece of information here that may or may not be of interest. Approved purchaser records are those that are denied use in the law. Denied 

purchaser records can be used and are being used. So there is a 

difference. The law is as the Congress wrote it, and I intend to enforce the law as it has been written and signed by the President. 

Senator HATCH. We wrote it that way because we had to. It was 

the only way we could pass it. 

Senator SCHUMER. Mr. Chairman, if you don’t run the checks, 

you are not going to know who should be denied. 

Attorney General ASHCROFT. I don’t think we—we are ships 

passing in the night, or maybe I am a rowboat passing you as a 

ship. I may—whatever it is here, I don’t mean—

Senator SCHUMER. Well, I hope we can be rowing in the same direction on this issue. 

Attorney General ASHCROFT. All right. We will work on it. 

Senator SCHUMER. Okay. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

The Senator from Alabama? 

Senator SESSIONS. Attorney General Ashcroft, congratulations to 

you and your staff for the extraordinary effort, including the FBI, 

Immigration, and all of the agencies that you have marshalled and 

invigorated to do everything possible to protect the people of America from further attacks. I think it has got to be concluded that the 

things you have done have helped prevent further attacks. I think 

few of us after September 11th thought we would be this far along 

without additional attacks, so some things you are doing are working. 

Now, we have had a lot of criticisms and suggestions and explicit 

condemnations of actions saying that they violate laws of the 

United States or the Constitution of the United States. Let me simVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00356 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
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ply ask you directly the same question I asked Mr. Chertoff. Is 

there anything that you have done and the Department of Justice 

has promulgated that you believe violates the Constitution or any 

statutes of the United States in your effort to fight terrorism? 

Attorney General ASHCROFT. I believe that every action we have 

taken is authorized by the Constitution of the United States and 

is lawful. 

Senator SESSIONS. I think that is important, Mr. Chairman, and 

I know a lot of people on our Committee and others around the 

country are saying they have concerns. Well, when this all came 

up, I could see people having concerns. But after we have had some 

time here to look at it, I think in my opinion, as a Federal prosecutor of 15 years and just as a person who can read plain language in cases, we are looking at a circumstance where no laws of 

this country are being violated, no precedent, no historical rights 

that we have come to be known have been violated by what you 

have done. And I think we ought to recognize that. If anybody has 

a specific, explicit example of an action that is in violation of the 

law, let’s have them say it. Just saying concerns is not enough. And 

to use irresponsible and reckless language, I think, accusing the 

Department of Justice prematurely perhaps without full study of 

violating the law and the Constitution, as some have, I think does 

have the tendency to erode unity in the country and undermine respect for our leadership in a time of war, and that just ought to 

be carefully done. 

So I would just note that Senator Schumer had an excellent 

hearing earlier this week, and we had some of the Nation’s foremost experts on military commissions and professors. We had two 

well-known Democratic, liberal professors, Cass Sunstein and Laurence Tribe, among others, who I believe quite clearly indicated 

their firm belief that the commissions are legal. Cass Sunstein indicated the only question is how they would be conducted. I think 

that is a real final, I would say, affirmation of the legality of what 

you are doing here. 

One of the questions that I was somewhat troubled about when 

I first heard it as a lawyer and as a prosecutor who knows the delicacy of lawyer-client privilege was the suggestion that you would 

monitor communications between the lawyers and clients. That 

was blown up in the newspapers in a way that caused me concern. 

But as I have understood that, before you would monitor—at this 

point you have concluded only 16 people in the whole Federal system might be subject to this monitoring. Is that correct? 

Attorney General ASHCROFT. To be subject to it, you have to be 

subject to special administrative measures, and our population of 

that category is now 16 out of 158,000 detainees in the Federal 

prison system. That is not in the INS system but the Federal prison system. 

Senator SESSIONS. Well, that is very few, and they are targeted 

in a way that I think is rational. The Weatherford case that you 

cited, which I had not been familiar with and put a board up on 

the board, the Weatherford case certainly suggests that the right 

to attorney-client communication is not absolute. The Attorney 

General’s Manual, which I had pulled, that Attorney General Janet 

Reno has cited, provides circumstances—very controlled and very 

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carefully done, but it does provide circumstances, does it not, for 

monitoring attorney-client, seizing attorney-client records, and 

other things under certain limited circumstances? 

Attorney General ASHCROFT. I am not an expert in the manual 

as promulgated by my predecessor, but we do not believe the right 

to be without reason, and the Weatherford case is our guide. 

Senator SESSIONS. Well, I remember Justice Goldberg made the 

comment once that the Constitution is not a suicide pact. I don’t 

think we are required to assume that we are prohibited from doing 

things that are legitimate under the circumstances. And I believe 

from my experience as a prosecutor—I know in experience dealing 

with drug dealers and Mafia people that those criminals have conducted criminal enterprises from inside the jail. Isn’t that true in 

your experience as a former Attorney General? 

Attorney General ASHCROFT. Yes, it is. 

Senator SESSIONS. And it seems to me that the mechanism you 

have devised is the way to do it. It provides for, Mr. Chairman, an 

entirely independent group to monitor the conversations only after 

the jailed person and his lawyer have been told the conversations 

will be monitored. They would be required by law to not utilize 

that information unless they found within those communications 

actions or comments that would further criminal attacks against 

the United States and that they would not be given to the prosecutors who are prosecuting the individual in jail for the criminal offense. Isn’t that correct? 

Attorney General ASHCROFT. That is correct. 

Senator SESSIONS. And, Mr. Attorney General, would you use 

your supervisory power, such as it is, would you use your power to 

prosecute criminals if any of those people who monitored the conversations breached that wall as they were ordered to do? 

Attorney General ASHCROFT. I would prosecute to the fullest both 

with disciplinary action and legal action those who would abuse 

this responsibility and trust. 

Senator SESSIONS. Mr. Chairman, I would just conclude with the 

words of Justice Jackson who discussed in the Nuremberg military 

commission trials, he said this—we are going to be judged not so 

much on the procedures we set forth—those are my words. I think 

you will be judged, the administration and the President will be 

judged not just on the procedures and words used to set up these 

commissions but on whether justice is done. He said this: ‘‘We must 

never forget that the record on which we judge these defendants 

is the record on which history will judge us tomorrow. To pass 

these defendants a poisoned chalice is to put it to our lips as well. 

We must summon such detachment and intellectual integrity to 

our task that this trial will commend itself to posterity as fulfilling 

humanity’s aspirations to do justice.’’

I think that is our challenge, to make sure that when this is over 

that occurs, and I am encouraged by the fact that the President of 

the United States has taken this burden upon himself personally 

to guarantee this, and history will hold him to account if they are 

not fair. 

Thank you. 

Chairman LEAHY. Senator Durbin? 

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Senator DURBIN. Thank you, Mr. Chairman. And, Mr. Attorney 

General, thank you for joining us today and taking our questions. 

On November 10th, before the United Nations General Assembly, 

President Bush said, ‘‘We have a responsibility to deny weapons to 

terrorists and to actively prevent private citizens from providing 

them.’’ I think the President was right. Do you agree with his premise? 

Attorney General ASHCROFT. I think we do have a responsibility 

to deny weapons to terrorists. 

Senator DURBIN. I also believe that you were correct earlier in 

your statement when you said that we need to focus on prevention, 

not just protection. Let me give you a few examples of things that 

I think we could do to deny weapons to terrorists and to prevent 

terrorist activity as opposed to just prosecuting those who have 

committed these heinous crimes. 

Last year, Connor Claxton, who was accused of being a member 

of the Irish Republican Army, testified that he had purchased firearms at gun shows in South Florida to smuggle back to Northern 

Ireland. On September 10th, the day before the attack at the World 

Trade Center, Mohamed and Ali Boumelhem, members of 

Hezbollah, were convicted on charges of conspiring to smuggle guns 

and ammunition to Hezbollah. The FBI had observed these two individuals buying weapons at gun shows in Michigan. On October 

30th, long after September 11th, when we were clearly doing everything we could to stop this kind of activity, Mohamed Navid Arwar, 

a Pakistani, pleaded guilty to immigration violations and illegally 

possessing a firearm. Mr. Arwar bought his firearm at gun shows 

in Michigan. 

You passed out—someone did on your behalf—this Al Qaeda 

manual, which you showed us earlier, and I had a chance to just 

glance through it very quickly. Here is their advice to their 

operatives and terrorist cells around the world in buying guns: 

‘‘Don’t lengthen the time spent with the seller. It’s important to depart immediately after purchasing the weapons.’’ The quote that 

was given earlier from another training manual that was disclosed 

in Kabul, gives this is advice to terrorists: ‘‘In countries like the 

United States, it’s perfectly legal for members of the public to own 

certain types of firearms. If you live in such a country, obtain an 

assault rifle legally, preferable an AK–47, or variations, learn how 

to use it properly, and go and practice in the areas allowed for such 

training.’’

Mr. Attorney General, many of us supported your request for additional authority to fight terrorism despite criticism from the left 

and from others that we were invading the rights in the Bill of 

Rights. We believe that you and the President and America needed 

the tools to fight terrorism. 

My question to you follows on earlier questions by my colleagues. 

Why is it when it gets to the Second Amendment, when it gets to 

this question of purchasing firearms, particularly by illegal immigrants who are here in the United States, who have connections 

with terrorism, that there is such a blind eye from the Department 

of Justice? The President said about military tribunals, he reminded us we must not let foreign enemies use the forums of liberty to destroy liberty itself. Couldn’t the same be said about some 

354

of our rights under the Bill of Rights? Should we let our foreign 

enemies use the rights of Americans to bear arms to attack and destroy liberty itself? 

The bottom-line question is this, following Mr. Schumer: Can we 

expect this administration to come forward proactively rather than 

reactively to deal with this proliferation of guns to the hands of terrorists and would-be terrorists that clearly threaten Americans and 

may threaten our men and women in uniform overseas? 

Attorney General ASHCROFT. Obviously, the balancing of the 

rights of individuals is the responsibility of the development of policy. I have indicated to Senator Schumer that I agree that illegal 

aliens should not be armed and that I would be very pleased to 

consider proposed legislation that would enhance our security by 

making it clear that they are not to be armed. 

In all of the efforts of the Al Qaeda operation, they look for avenues of freedom which they can then exploit. They look at our judicial system and seek to exploit it. They look at freedom of speech 

and seek to exploit that. And we always have to balance very carefully when we legislate to curtail their activities in ways that respect the freedoms, understanding the value of the freedoms, but 

also understanding the vulnerability that may come if there are 

those who seek to abuse them. It is with that— Senator DURBIN. May I ask you this question— Attorney General ASHCROFT. —in mind that I am willing to review legislation that you would send me in this respect. 

Senator DURBIN. Would you agree, then, that illegal immigrants 

to this country and would-be terrorist should not be able to buy 

guns at gun shows and ship them back to their terrorist organizations overseas or use them in some conspiracy or plot in the United 

States? Would you agree with that? 

Attorney General ASHCROFT. Well, the Brady law currently prohibits illegal aliens, felons, and terrorists from buying guns. So I 

would agree with that. I will enforce that to the extent that I— whenever we come upon those—

Senator DURBIN. Well, what about the gun shows? 

Attorney General ASHCROFT. You just cited for me the fact that 

illegal aliens were being prosecuted, via the Justice Department, 

for possessing such weapons. 

Senator DURBIN. But how many have we missed? 

Attorney General ASHCROFT. Well, I can’t tell you how many we 

have missed—

Senator DURBIN. Because we don’t check their backgrounds at 

gun shows, Mr. Attorney General. That is the whole point of changing the law. That is why we need your help and the support of the 

administration. We have worked with you to give you more powers 

to deal with terrorism. Isn’t this an important weapon for you to 

have to fight terrorists who are buying guns at gun shows? 

Attorney General ASHCROFT. You know, the gun shows provide 

a basis for the sale of guns by individuals, not so much at the gun 

show but frequently contacts are made there that are subsequently 

involved in private treaties over the sale of guns. Federally licensed 

gun dealers selling guns at gun shows are subject to the Brady law, 

and the Brady law does prohibit all felons, including terrorists and 

illegal aliens, from purchasing guns. 

355

Senator DURBIN. It is such a small part of the problem. If we are 

going to deal with the whole problem and give you the authority 

to deal with it effectively, I hope the administration will be as 

forthcoming when it comes to the Second Amendment as they have 

on other amendments, have an open mind on finding ways to make 

America safer. I believe you are dedicated to that. I think the 

President is by his very words. But if we can cooperate and put 

something in place to keep these guns out of the hands of terrorists 

at gun shows, I think it will make America safer. 

Thank you. 

Attorney General ASHCROFT. I would be happy to confer with 

you. 

Chairman LEAHY. Thank you, Senator Durbin. 

Senator McConnell, who has been very patient. 

STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR 

FROM THE STATE OF KENTUCKY 

Senator MCCONNELL. Thank you, Mr. Chairman. When you are 

the last man, you have no choice but to be patient. Coming back 

on this Committee after all these years as the least senior member 

reminds me that when you get down to the end of the table, everything has been said, but not everyone has yet said it. 

[Laughter.] 

Senator MCCONNELL. In listening to my colleagues, Mr. Attorney 

General, the first thing I want to do is congratulate you. We are 

exceedingly proud of you as a former member of this body for the 

truly outstanding job that you are doing, were doing before 9/11 

but particularly since 9/11. 

The best evidence, it seems to me, that you have won already in 

the public discussion over military commissions is that this hearing 

seems to be becoming a hearing about gun control. Obviously many 

of our friends on the other side feel that the military commission 

argument has largely been lost. But at the risk of bringing up an 

argument that we have already essentially won, because I think 

you are absolutely right on this, right on the Constitution, right on 

the propriety, and right on the necessity of having military commissions available to the President during the prosecution of this 

war, I think you have won that argument. But I do want to, even 

though it has been won, make my one question on that subject. 

On Tuesday, one of the members of this Committee asked whether a trial by court martial rather than a military commission would 

work for war criminals. Like you, I think there would be operational problems with using courts martial rather than military 

commissions in these kinds of circumstances. 

For example, I don’t think we should have to perfectly establish 

the chain of custody of evidence that our armed forces came across 

on some Afghan battlefield or in a cave. But aside from the operational problem inherent in using a trial by courts martial for foreign war criminals, do you think it would be perverse, really, to 

give war criminals all the privileges and procedures that we give 

to American citizen soldiers under the United States Code of Military Justice when our soldiers are not war criminals? This would 

also send a perverse message to foreign war criminals, go ahead 

356

and commit war crimes, and you will be treated just like an American soldier who does not commit war crimes. 

Would not treating foreign unlawful combatants just like American lawful combatants remove a disincentive for committing war 

crimes? 

Attorney General ASHCROFT. I thank the Senator. I believe the 

President has two responsibilities: 

One is to see to it that his Justice Department vigorously prosecutes laws that are passed/enacted by the Senate and House and, 

in conjunction with the President, signed into law. 

There is another responsibility when he is conducting a war. 

That is to make sure that the world does not commit war crimes 

against the citizens of the United States, and in resolving each of 

those issues, it is important for him to protect the national interests at the highest level possible. 

Because the constitutional Founders did not expect us to have 

war conducted by Committee, they vest in the President of the 

United States very substantial powers and focus those powers in 

him for the conduct of the war, and that includes the creation of 

war crimes commissions. 

The President of the United States, while he is obviously interested in protecting the national interests and intends to do so vigorously, is committed to full and fair hearings. I think, as Senator 

Sessions has indicated, the world will judge us based on whether 

or not we have full and fair hearings. But let us never forget that 

the world also understood, and understands, the nature of the war 

crimes perpetrated and also understands that there are conditions 

during the time of war which might mean that it is inappropriate 

to have certain procedures which might reveal or place in jeopardy 

the interests of the United States about our tactics, about our 

troops, about our positions or even vulnerabilities which we might 

have that might be disclosed; so that there is clearly a need to tailor the proceedings not to avoid fairness or fullness of opportunity, 

but to make sure that the interests of the United States are protected. 

It is in that respect that I think we should make it clear that 

we are not going to allow war criminals to try and exploit the justice system of the United States, so as to perpetrate an attack upon 

the United States designed to destroy that justice system, whether 

that justice system be in the criminal justice system or the Uniform Code of Military Justice. 

For that reason, I think the President assigned the responsibility 

to the Secretary of Defense that he create a system attentive to 

these principles that was full and fair, but was designed to protect 

the United States of America, and I hope that the system also signals unmistakably to the world that innocent lives are not to be destroyed by war criminals and such activity will not go unnoticed or 

uncompensated or unresponded to by the United States. 

Senator MCCONNELL. Again, Mr. Attorney General, I want to 

congratulate you. I think you have won the public discussion on 

military commissions. You have done it in an outstanding way, and 

we thank you very much for being here today. 

Chairman LEAHY. Attorney General, I think everybody would assume that we have demonstrated very much to the world that we 

357

do not take lightly these attacks on our soil. All you have to do is 

turn on the evening news and see the tens of billions of dollars of 

effort, bombs being dropped, our special forces, Marines, even giving up their lives to carry that out. We also want to demonstrate 

to the American people, at the same time, that we also have an 

equal commitment to preserving those liberties that have made us 

free. 

Attorney General ASHCROFT. We could not agree more profoundly 

on that, Mr. Chairman. 

Chairman LEAHY. I understand. 

Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman, and General 

Ashcroft, thank you for your patience and testimony today. Hopefully, I can bring up a few subjects that have not been discussed, 

and I appreciate your help in getting through a few questions, if 

we could. 

Obviously, the cumulative nature of the Department’s actions 

over the past few months, the expansion and the eavesdropping authority in the terrorism bill, the expansion of use of e-mail searching with technologies like Carnivore, the compilation of databases 

on Arab Americans, and just this week a request made to the Intelligence Committee to broaden the FISA wiretap authority even further brings a lot of questions in America that maybe we may just 

be going too far, too fast. 

Given that, I guess my first question is, and given that really the 

safeguards in judicial review that have been in place before on 

some of these wiretap and eavesdropping measures are being 

eased, what do you believe should be the process of oversight? And 

to be specific, if I could, if we are expanding the watching capacities of the FBI and the Justice Department, who should be watching the watchers in our oversight? 

Attorney General ASHCROFT. You remind me of a spate of cartoons that has appeared in the last week, and it is generally a kid 

sitting on Santa’s knee and the Santa saying, ‘‘I know when you 

have been sleeping. I know when you have been awake. I know 

when you have been bad or good,’’ and the kid looks up and says, 

‘‘Who are you—John Ashcroft?’’

[Laughter.] 

Senator CANTWELL. I am not sure everybody in America is laughing at that. 

Attorney General ASHCROFT. Well, let me apologize if that is offensive to you. I do not take it lightly. I do know that the things 

I do are serious, although I try not to take myself too seriously. 

I think this Committee has a valuable and appropriate oversight 

responsibility. It is why I was eager to respond to the Committee. 

I volunteered to come in on Thursday of last week and was told 

that Thursday would be an inappropriate day last week, so I am 

here this week. 

I do not take lightly your responsibility, and I do not take lightly 

the responsibilities that we have to enforce the law, but neither do 

I take lightly the responsibility we have to safeguard the liberty of 

individuals. That is why, when we wanted additional authority and 

we seek additional authority, we do not take it lightly. An authorVerDate Feb 1 2002 09:00 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00363 Fmt 6601 Sfmt 6602 C:\HEARINGS\81998.0 SJUD4 PsN: CMORC
358

ity that we do not have, we come and ask this Congress for and 

work with them on. 

The Intelligence Committee has recently sought to make four adjustments in the law. Two of them are really the corrections of 

what have to be viewed as almost typographical sorts of housekeeping things that were with the U.S.A. Patriot Act, and another 

two are minor adjustments that the Intelligence Committee believes would be appropriate. 

But I fully agree, if you are suggesting, that you have a solemn 

responsibility to see to it that we do not go too far, and I think that 

is always an appropriate question, and it is a question that I never 

want to fail to ask myself. 

Senator CANTWELL. Well, in following that line of questioning, 

particularly in the areas and use of Carnivore and Magic Lantern, 

which is technology that I believe that the FBI is using and, in our 

expansion in the antiterrorism bill, I mean, I just want you to 

know I am voting for that legislation and giving my constituents 

the assurance that we were going to monitor carefully and have 

oversight. I am asking you now if the Department of Justice will 

meet with Congress on a regular basis, maybe four times a year, 

in closed-door session, if necessary, and provide information to us 

on the usage of Carnivore and Magic Lantern as eavesdropping on 

electronic mail that I think America is concerned about. 

Attorney General ASHCROFT. I need to try and clarify something. 

Carnivore was a proposal, which has been very significantly adjusted to meet a number of concerns expressed I think by the people who have dealt with you, and I have dealt with, and I dealt 

with when I was in the Senate. It has now, with those adjustments, been referred to by a different name, DCS–1000 I believe 

is the name of it. 

I am interested in working with the Congress to make sure that 

capability is appropriately deployed and respectfully deployed and 

would be pleased to find a way to do that, and we will work with 

you to get that done. 

Senator CANTWELL. So you think possibly meeting four times a 

year, reports on the usage of that technology—I know that you 

mentioned earlier, and I know that sometimes headlines can be unfair, but in probably the category of headlines that John Ashcroft 

would hate, yesterday’s ZDNet online publication had, ‘‘Warning: 

We know what you’re typing, and so does the FBI.’’

The article goes on to talk about how the expanded authority 

under the Patriot Act could mean that the FBI would be using the 

Magic Lantern technology, which really creates a worm, if you will, 

on an e-mail. So the suspect who may be your target then sends 

an e-mail to another individual, thereby sending this worm and 

virus and then leaving them open to having their keystrokes monitored. 

I think, in the interest of not wanting to have more headlines 

like this, if we can work more closely together to understand how 

this technology is used and making sure that Americans’ e-mails, 

under this broad expansion of power to catch terrorists, are not 

being overly used and invading U.S. citizens’ rights to communicate 

electronically. 

359

Attorney General ASHCROFT. I welcome the opportunity for the 

Department to work with you toward these objectives. 

Senator CANTWELL. Thank you. If I could, I appreciate your signing of the U.S.–Canadian agreement on cooperation on immigration 

and asylum. Obviously, we are in the last days here of working 

very diligently on the Northern border issues. One of the concerns 

that we have, in the antiterrorism bill, we authorized the tripling 

of Northern border inspectors, INS, Customs agents, and yet we, 

in the supplemental that has been submitted by the administration, have very few dollars for those activities. 

So I am asking whether you support the homeland defense measures here in the Senate that would appropriate dollars for that effort that we did authorize in the Patriot Act. 

Attorney General ASHCROFT. Senator, I believe we need additional resources along the Northern border. We have about 5,500 

miles of border with Canada. Even with the assignment of National 

Guard troops to try to back-fill some of the overstressed individuals 

there, we are at a very low number. In some respects, we have 

less—I think it is about one person per every 100 miles, if we count 

the way the shift would have to be so that people do not work full 

time all of the time. 

I will urge upon the administration the devotion of the appropriate resources to provide us with not only a secure border, but 

with the border that gives us the facility and flow necessary to 

keep commerce going and the valuable trade between our countries. 

I was in Detroit and Ottawa both this week earlier, and we have 

about $1.3 billion a day that crosses our borders in trade between 

the United States and Canada. About $1 out of every $5 of trade 

the United States does anywhere in the world is with Canada. If 

we do not have the capacity to move that trade expeditiously, we 

hurt ourselves economically very badly. That is the basis for our effort to provide additional cooperation. 

This President has instructed me, in the homeland defense and 

security arena, to work with the Canadians to the advantage of 

both of our countries, and I will try and work with you in the same 

respect. 

Senator CANTWELL. I know my time has expired, Mr. Chairman, 

but if I would, I think I will submit one last question on the U.S.–

Canadian agreement as it relates to biometrics. There is a mention 

in there of agreement working with Canada on the permanent residency, you know, green card status and use of biometrics. 

I think what our language in the antiterrorism bill envisioned is 

more working on visas of people seeking to come into the country 

on a temporary basis and using some sort of biometric standard 

there to positively identify people that we do not want into the 

country as opposed to people who are working here on a permanent 

basis having to submit, when they actually already do, for those 

green card standards, but I will submit a question on that. 

Thank you. 

Attorney General ASHCROFT. Thank you. 

Chairman LEAHY. The Senator from North Carolina? 

360

STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM 

THE STATE OF NORTH CAROLINA 

Senator EDWARDS. Thank you, Mr. Chairman. 

Good afternoon, Mr. Attorney General. 

Attorney General ASHCROFT. Good afternoon. 

Senator EDWARDS. Appreciate your patience. I know this has 

been a long hearing. 

We want very badly to make sure that you have the tools you 

need to protect the American people, including new laws and new 

measures, but while we are protecting American lives, we also need 

to be certain that we protect American values and American principles. 

It seems to me that these times of crisis and times of war are 

times when those principles and values are most at risk, when people get caught up in the passion of doing what is necessary under 

the circumstances. We have seen in the past, during World War II, 

the internment of over 100,000 Japanese Americans by a great 

President. I am sure at that time that was a very popular move, 

but it is not something, I do not think, that we are very proud of 

today. I am not suggesting that these military tribunals are equivalent to that, but whatever we do, I want to make sure that your 

children, and mine, and our grandchildren will be proud of what 

we have done. 

My concern about the whole issue of military tribunals is not the 

notion of using them. I can easily see that there would be circumstances in which it would make sense to use them. My concern 

is that this directive, this order, is extraordinarily broad, and I 

want to ask you about three or four areas, if I can, to see if we can 

make sure that some of the things that the order would appear to 

allow, in fact, are not something that you intended or intend to do. 

Number one, the order says that a person who is subject to the 

order shall be detained, and then goes on to say, if that individual 

is tried—so subject to the order you shall be detained, if you are 

tried. So, on the face of the order, it would appear to allow unlimited detention without trial. 

First, can you tell us today that that is not something that will 

happen under this order? 

Attorney General ASHCROFT. Senator, I believe, and I am trying 

to recreate some of this order in my mind, but I believe that when 

you get to the trial part, it talks about when tried, and I think that 

is the intent of the order. 

Senator EDWARDS. Well, I am looking—excuse me for interrupting you—I am looking at the language right now. ‘‘If the individual is tried,’’ is the language of the order, at least the language 

that I have in front of me. 

Attorney General ASHCROFT. I think there is another part of the 

order. 

Senator EDWARDS. Without getting caught up on the semantics, 

though, you do not intend to use this order to detain people and 

detain them for an unlimited period of time without trial; is that 

true? 

Attorney General ASHCROFT. I believe it is completely fair to say 

that. 

361

Senator EDWARDS. Second, there is a provision in the order that 

says the President or the Secretary of Defense makes the final decision. I believe you are familiar with that provision. 

Attorney General ASHCROFT. Yes. 

Senator EDWARDS. On the face of the order, that would allow the 

President or the Secretary of Defense to, in fact, overturn an acquittal by a tribunal; in other words, to come in after the case has 

been tried, there has been an acquittal, and the Secretary of Defense decides we do not agree with that, we are going to overturn 

it. And, in fact, on the face of the order, it would allow the Secretary of Defense alone to impose the death penalty. 

What I want to know is, is that the intent of the order or can 

you tell us today that if, in fact, there is an acquittal at the tribunal level, that that will not be overturned by the Secretary of 

Defense? 

Attorney General ASHCROFT. I believe it is settled practice of war 

crime commissions that you cannot overturn an acquittal. I feel 

confident in telling you that is not the intention of—

Senator EDWARDS. That will not occur. 

Attorney General ASHCROFT. I do not believe that to be intended 

by the order. 

Senator EDWARDS. Third, burden of proof. There is nothing in the 

order that deals with the issue of burden of proof. That, on its face, 

would allow someone to be convicted and, in fact, receive the death 

penalty on a greater weight of the evidence standard or a preponderance of the evidence standard, 51 percent versus 49 percent. 

Can you tell us that, in order for someone to be convicted under 

this order and for the death penalty to be imposed against them, 

that you will require a significantly higher burden of proof than 

preponderance of the evidence or greater weight of the evidence, 

which is only used in civil cases in this country? 

Attorney General ASHCROFT. I think it is pretty clear that the 

President has asked the Secretary of Defense to develop a set of 

regulations and procedures governing the war crimes commissions 

that are full and fair. Admission of such evidence would be evidence of probative value. There is a provision for the accused to be 

represented by counsel. The conviction and sentence would be upon 

two-thirds majority vote. 

Senator EDWARDS. Mr. Attorney General, excuse me for interrupting you, but the only thing I am asking you about—I am not 

asking you about either of those things—I am only asking you 

about the burden of proof. Will you require, in order for somebody 

to be convicted and the death penalty to be imposed against them, 

that the burden of proof be more than just a preponderance of the 

evidence? 

Attorney General ASHCROFT. I think that is an issue which is 

still to be determined, and it would be beyond my power to speculate on that. The Secretary of Defense is formulating the procedures, and among those procedures may be items like appeals procedures and other instructions to those conducting the trials, but 

I cannot provide further information than to say that at this time. 

Senator EDWARDS. You are the Attorney General of the United 

States. You are an experienced lawyer. I am asking you whether 

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ceive the death penalty based on 51 percent of the evidence? Do 

you or do you not, you, just you, personally? 

Attorney General ASHCROFT. I am not going to try to develop a 

set of rules or regulations on that evidentiary standard or other 

standards at this time. That is the responsibility of the Secretary 

of Defense in regard to this very serious matter, and I would expect 

him to very carefully make judgments in this arena. I, personally, 

have not given that the kind of thought, at this moment, to say 

what exactly I would do were I to have the responsibility, which 

I do not have. 

Senator EDWARDS. Now you just mentioned a provision in the 

order that says that the conviction can occur on a two-thirds vote, 

as opposed to a unanimous vote. Does that mean that under this 

order, if there is a three-person tribunal, that somebody could be 

convicted, receive the death penalty and be executed based upon a 

2-to–1 vote? 

Attorney General ASHCROFT. I would believe that this states a 

minimum standard in its direction to the Secretary of Defense. It 

means that two out of three of the triers of fact have to come to 

a conclusion before a sentence could be imposed. 

Senator EDWARDS. Which means that if the tribunal is composed 

of three people, the case is presented, two of the three say that the 

death penalty should be imposed, one says it should not, it could 

be imposed, and the person could be executed; is that what you are 

saying? 

Attorney General ASHCROFT. If you are talking about a twothirds rule, and if that is the rule that eventually is adopted by the 

Secretary of Defense, two out of three is two-thirds. I agree with 

that. 

[Laughter.] 

Senator EDWARDS. All right. 

Attorney General ASHCROFT. U.N.-sponsored tribunals allow conviction on a simple majority, like the ones at The Hague and the 

ones that are litigating and adjudicating the atrocities against 

those in Central Africa, and it seems to me that— Senator EDWARDS. Excuse me, Mr. Attorney General, do those 

allow the death penalty? 

Attorney General ASHCROFT. I do not know. 

Senator EDWARDS. I do not believe they do. 

Let me ask you one last area, the area of the whole question of 

appeals. We have seen in our court system—which most of us believe is one of the best, if not the best, in the world—over the last 

2 decades, people who, based on later-found evidence, DNA evidence, for example, have absolutely been found to not have been 

possible that they committed the crime. 

The White House counsel has said that a challenge can be made 

to the jurisdiction of the Court. Now you and I understand that the 

jurisdiction is very different than whether, in fact, the person committed the crime, whether they are guilty, whether evidence should 

have been admitted that would have shown that the person could 

not have committed the crime, all of those issues that go to the 

basic question, which I think most Americans are concerned about, 

about these kinds of issues, is did this person do it? Did they, in 

fact, do what they have been accused of doing? 

363

Do you believe that there needs to be a process that allows some 

appeal that looks at the fundamental question of how the trial was 

conducted, whether evidence was properly considered by the Court, 

and whether, in fact, there was evidence that was not considered 

by the Court that would have shown this person, in fact, did not 

do it, did not commit this crime? 

Attorney General ASHCROFT. In the President’s order to the Secretary of Defense to develop procedures here, I believe there is adequate latitude for the Secretary of Defense to develop a potential 

and a framework for— Senator EDWARDS. And is that something you believe should be 

done? 

Attorney General ASHCROFT. I believe that the President and the 

Secretary of Defense, both according to the order, constitute appellate authorities, and I think those appellate authorities are consistent with systems that provide the kind of justice that is less 

likely to have error. 

Senator EDWARDS. The President and the Secretary of Defense 

are the people who decided the prosecution should be brought in 

the first case. Do you believe there needs to bean objective third 

party that looks at the trial, looks at the conviction, looks at the 

imposition of the death penalty, if that, in fact, has occurred, and 

looks at whether it should have happened? 

Attorney General ASHCROFT. The Secretary of Defense would 

have the authority to develop appellate procedures under the order, 

military order, for the development of war commissions issued by 

the President. I believe that that authority is available to him, and 

if he chooses to confer with me about that, I will provide advice to 

him regarding appellate procedures. 

Senator EDWARDS. Do you believe, in fact, there needs to be a review, an objective review, by a third party. That is what I am asking you. 

Attorney General ASHCROFT. I am going to reserve my comments 

to provide advice to the President and the Secretary of Defense regarding any questions they have for me regarding what should be 

or should not be added in terms of procedures for this order. 

Senator EDWARDS. Thank you, Mr. Attorney General. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Edwards. 

I think, as I hear this testimony, I think all of the more reason 

guidelines should be set by the Congress for military tribunals, especially on the question of preponderance of evidence, the death 

penalty, but I think we can do that. 

I would suggest that Senator Hatch, and I, and others at least 

have that discussion. 

Senator HATCH. Could I make just one last comment? I would 

like to read one person’s defense of the military tribunal system, 

and let me quote it. 

‘‘It is of the utmost importance that no information be permitted 

to reach the enemy on any of these matters. How the terrorists 

were so swiftly apprehended; how our intelligence services are 

equipped to work against them; what sources of information we 

have inside al Qaeda; who are the witnesses against the terrorists; 

how much we have learned about al Qaeda terrorist methods, 

364

plans, programs and the identity of other terrorists who might be 

or have been sent to this country; how much we have learned about 

al Qaeda weapons, intelligence methods, munitions plants and morale.’’

‘‘All of the testimony given at a trial bears, to some degree, upon 

these matters. There is no satisfactory way of censoring and editing 

this testimony for the press without revealing, by statement or significant omission, the answers to many of the questions which may 

now be puzzling our enemies. We do not propose to tell our enemies 

the answers to the questions which are puzzling them. The only 

way not to tell them is not to tell them. The American people will 

not insist on acquiring information which by the mere telling would 

confer an untold advantage upon the enemy.’’

Now these are not my words. These are the words of Franklin 

Delano Roosevelt’s Attorney General, Francis Biddle, in announcing the military tribunal that FDR constituted in connection with 

the Quirin case. Now I merely substituted ‘‘al Qaeda’’ for ‘‘Germany’’ and the word ‘‘terrorist’’ for ‘‘saboteur.’’

The reason I read this is to provide some perspective. The issues 

we are confronting here are not new. The same issues that concern 

us today, concerned our forefathers during World War II, and the 

same reasoning that persuaded FDR to constitute a military tribunal still ring true today. 

So, if I could submit for the record the full remarks of Attorney 

General Biddle, I think it would be appropriate. 

Chairman LEAHY. We will close with this, just to, now that you 

have raised that point, note that on that tribunal, not only was 

there, of course, congressional authorization, but I would also point 

out that history has now shown the driving force behind that tribunal was to cover up the mistakes of J. Edgar Hoover at a time 

when he was about to receive a medal from Congress—

Senator HATCH. I do not believe there was congressional authorization. 

Chairman LEAHY. Be that as it may, this was, had there been 

an open trial, they would have found the evidence came from two 

of the saboteurs who had to beg the FBI to arrest them. I think 

we have a far different FBI today, a far better FBI today. I think 

that the Attorney General and Director Mueller deserve a lot of 

credit for that. 

General, I thank you. You have been here for almost 3 hours. 

You have been patient. You know there will be other questions that 

will be asked for you. I appreciate your comments earlier that you 

were perfectly willing, and even eager, to be here testify. I appreciate that. That is in the best tradition of oversight. 

I, also, believe you appreciate the fact that we are all united in 

wanting to battle terrorists. We also want to make sure all of us—

you, me, and everybody else—that we preserve our own liberties in 

doing it. 

With that, we thank you. 

We stand adjourned. 

[Whereupon, at 1:48 p.m., the Committee was adjourned.]

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SUBMISSIONS FOR THE RECORD 

ST. MARY’S UNIVERSITY SCHOOL OF LAW

December 2, 2001

Hon. Senator Schumer 

Hon. Senator Sessions

SENATE HEARINGS REGARDING: PRESERVING OUR FREEDOMS WHILE DEFENDING

AGAINST TERRORISM

Dear Senators Schumer and Sessions, 

The purpose of this letter is to provide a short statement to express my general 

support for the use of military tribunals to try suspected war criminals/terrorists 

who have committed grave breaches of the laws of war. I have carefully read the 

military order signed by President Bush. Given the fact that a current state of international armed conflict exists between the United States of America and the 

Taliban government of Afghanistan, military tribunals are the appropriate forums 

to bring to justice suspected war criminals. Specifically, these individuals would be 

those non-U.S. citizens who participated in the unlawful attacks on the United 

States on September 11, 2001, and any other non-U.S. citizens who have committed 

subsequent grave breaches of the laws of war—whether members of the Taliban or 

individuals who are harbored by the Taliban. 

Traditionally, the Executive Branch has employed the use of military tribunals/

commissions to try suspected war criminals for actions that amounted to grave 

breaches of the laws of war during war. Since the close of the American Civil War 

in 1865, all individuals referred to such military trials have been non-U.S. citizens 

and the Executive Branch has not only established the tribunals but also the rules 

associated-with the operation of said military trials. Apart from ‘‘fairness’’ issues associated with what rules the Executive Branch (through the Secretary of Defense) 

may ultimately establish for the modus operandi of the tribunals in the current situation, in my professional opinion, not only is the use of military tribunals to try noncitizens who have committed grave breaches of the laws of war a Constitutional exercise of power by the Executive Branch, but I believe that the Executive Branch 

has the legal authority to provide for the associated rules by which these tribunals 

will operate. 

1 am currently a Visiting Professor of Law at St. Mary’s University School of Law 

in San Antonio, Teas where I teach a variety of topics to include National Security 

Law. I retired two years ago after serving for 20 years in the U.S. Army’s Judge 

Advocate General’s Corps. While in the military I worked in a variety of legal positions to include the Deputy of the International Law Division in the Pentagon, Senior Instructor in law of war issues at the Army’s The Judge Advocate General’s 

School, and the senior legal advisor for the U.S. Army Special Forces (Airborne) 

If I may be of any further help in this regard, please feel free to contact me at 

210-431-2274, email addicottj@law.stmarytx.ecu. 

Very Respectfully Yours, 

JEFFREY F. ADDICOTT

f Visiting Professor of Law

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

The American Civil Liberties Union is a non-partisan, non-profit organization consisting of nearly 300,000 members dedicated to protecting the principles of freedom 

and equality set forth in the Constitution and in our civil rights laws. 

On September 11, thousands of Americans were brutally murdered in an audacious, coordinated attack. Our main office is only blocks away from the twin towers 

and our colleagues joined the terrified crowd rushing north from lower Manhattan. 

We recognize that the Department of Justice has a profound duty to prosecute the 

perpetrators and to try to protect the public against other attacks. We appreciate 

that this is a daunting task and that thousands of well-meaning people at the Department of Justice are working hard to accomplish this goal. 

The ACLU has supported many of the efforts now underway to promote security, 

such as recent initiatives to toughen airport security. However, we remain convinced 

that the government need not sacrifice civil liberties to protect the public. We can 

be both safe and free. 

366

1 Id. at 21–23 (charging violations of Articles 81 & 82 of the Articles of War). 2See Pub. L. No. 84–1028 (1956) (repealing Articles 81 & 82). 

This statement outlines how the conduct of the Department of Justice over the 

last ten weeks has undermined our most cherished rights, blunted the tools of accountability, and threatened the balance of power between the various branches of 

government. 

From the outset, the Attorney General and other spokespersons for the Department of Justice have signaled that they would not erode civil liberties in response 

to the September 11 attacks. Unfortunately, the actions of the Department of Justice and of other agencies acting in concert suggest otherwise. The Attorney General 

and the Administration have detained more than a thousand people without providing information to the media or public, written new regulations allowing for the 

recording of privileged conversations between attorneys and clients, proposed military tribunals without constitutional protections, and expanded the government’s ability to withhold information from the public. We are deeply troubled by these actions. We hope that today’s hearing is a step in the direction of Congress taking responsibility for its role in overseeing the Executive Branch and protecting our democratic government. 

MILITARY TRIBUNALS

‘‘We will not yield in our determination to protect the constitutional rights of individuals. Very frankly, those who attack the United States would attack the constitutional rights as well as the safety of individuals. We’re going to do everything we 

can to harmonize the constitutional rights of individuals with every legal capacity 

we can muster to also protect the safety and security of individuals. It’s with this 

in mind that we would evaluate any potential changes in the law.’’ Attorney General 

Ashcroft, Press Briefing, September 18, 2001. 

On November 13, 2001, President Bush issued a ‘‘Military Order’’ providing for 

potentially indefinite detention of any non-citizen accused of terrorism, and permitting trial of such defendants in a military commission with no provision for judicial 

review. 

These tribunals will not be governed by the Uniform Code of Military Justice and 

do not contain the protections provided by the UCMJ. The order was issued without 

a formal declaration of war or any authorization by the Congress for the establishment of military tribunals. It circumvents the basic statutory requirement - at the 

heart of the compromise that was the USA Patriot Act -that non-citizens suspected 

of terrorism must be charged with a crime or immigration violation within seven 

days of being taken into custody, and that such detainees will have full access to 

the federal courts. 

The President’s Military Order is unjustified and dangerous. It permits the 

United States criminal justice system to be swept aside merely on the President’s 

finding that he has ‘‘reason to believe’’ that a noncitizen may be involved in terrorism. It makes no difference whether those charged are captured abroad on the 

field of battle or at home by federal or state police. It makes no difference whether 

the individual is a visitor or a long-term legal resident. Finally while the order applies in terms only to non-citizens, the precedents on which the President relies 

make no .such distinction, thereby permitting the order to be extended to cover 

United States citizens at the stroke of a pen. 

The President does not have unchecked war power by virtue of his authority as 

Commander-in-Chief. Rather, he shares these powers with Congress. ‘‘The whole 

powers of war being, by the constitution of the United States, vested in congress, 

the acts of that body can alone be resorted to as our guides in this inquiry.’’ Talbot

v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801). This is true whether Congress authorizes 

‘‘general hostilities’’ by declaring war, or ‘‘partial hostilities’’ by authorizing the use 

of force in a military action short of war, as it has done here. Id. 

The Administration claims authority to establish military tribunals from the 

World War II-era precedent involving the trial of eight accused saboteurs, who landed on United States territory in 1942, shortly after the United States declared war 

on Germany. Their trial by military commission was upheld by the Supreme Court. 

Ex Parte Quirin, 317 U.S. 1 (1942). But unlike President Bush, President Roosevelt 

relied on the authority Congress had given him by its formal declaration of war. Id

at 25–26. Roosevelt also relied on specific statutory authority permitting trials of 

enemy spies by military commission.1 This authority has since been repealed.2

The scope of the President’s Order is breathtakingly broad. It applies to any individual whom the President determines he has ‘‘reason to believe’’ is (1) a member 

of A1 Qaeda, (2) is in any way involved in ‘‘acts of international terrorism’’—a term 

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3 Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits of the 

Principle of Military Necessity, 92 Am. J. Int’1 Law 213, 223–25 (1998). Of course, Lincoln’s 

views of what was ‘‘necessary’’ conflicted with that of the Supreme Court in the Milligan case. 

which is not defined by the order—or (3) has ‘‘knowingly harbored’’ either of the 

above. If the term ‘‘acts of international terrorism’’ is defined by reference to any 

of several definitions of terrorism in the United States Code, as expanded under the 

USA Patriot Act, the universe of potential defendants could sweep in not only those 

who are directly involved in or knowingly support violent activity, but also many 

others on the basis of otherwise lawful, non-violent political activities and associations. 

The Attorney General has sought to justify the order on the grounds that it applies only to noncitizens, whom he erroneously (and alarmingly) claims not to have 

any constitutional rights. The Supreme Court made clear just this past summer that 

‘‘the Due Process Clause applies to all ‘persons’ within the United States, including 

aliens, whether their presence here is lawful, unlawful, temporary, or permanent.’’ Zadvvdas v. Davis, 121 S. Ct. 2491, 2500 (2001) (emphasis supplied). 

If United States courts can hear terrorism cases, and there has been no showing 

that they cannot, this severely undercuts the argument for military tribunals. Military tribunals, other than ordinary courtsmartial, are adopted as a last resort to ensure justice when the civil courts cannot function, not as a method of avoiding available forums for justice by undercutting basic constitutional rights. Military tribunals 

are used against ‘‘certain classes of offense which in war would go unpunished in 

the absence of a provisional forum for the trial of the offenders.’’ Madsen v. Kinsella, 343 U.S. 341, 348 n.8 (1952) (emphasis supplied). Likewise, President Lincoln regarded military justice as permissible only if justified by military necessity, and refused demands to create military courts except where made necessary because of the 

inability of the regular courts to act.3

The Military Order also fails to respect the careful limits that the Constitution 

has placed on the use of military courts even in times of declared war. They are 

not a substitute for civil justice generally, but may be applied only to ‘‘unlawful 

enemy belligerents,’’ a class which is far narrower than the universe of all persons 

who could be accused of terrorism crimes, particularly after the broadening of the 

definitions of terrorism in recent anti-terrorism legislation. 

Finally, and perhaps most importantly, the order utterly fails to account for the 

evolution of both international law and American constitutional law since World 

War II, when military commissions were last extensively used. It does not guarantee 

due process for the accused and could permit trials that our own government has 

said are fundamentally unfair and violate basic international standards when such 

trials are held in other countries. If Congress chooses to authorize military tribunals 

for a limited class of accused terrorist war criminals, it is imperative that such 

standards apply. 

DETENTIONS

‘‘I’m deeply concerned about the civil liberties of all Americans. I’m especially concerned about the civil liberties of Arab Americans and Middle Eastern Americans 

who are patriotic citizens, who lament and regret this loss, perhaps as keenly or 

more keenly than any, and whose commitment to the strict enforcement and pursuit 

of these networks of terror that inflict this kind of injury is as strong as any.’’ Attorney General Ashcroft remarks following his tour of the Pentagon, September 19, 

2001. 

The Department of Justice has launched what appears to be the most extensive 

program of preventative detention since the internment of over 100,000 Japanese 

and German-Americans during WWII. By the admission of the Department of Justice, over 1,200 people have been detained in connection with the September 11 attacks. According to media accounts of the detentions, approximately 1 percent or 2 

percent of those detained in connection with the attacks are actually suspected of 

having any involvement at all. The rest are being held on the basis of unrelated 

immigration violations, minor crimes (usually under state law), and as material witnesses under 18 U.S.C. sec. 3144. It appears that the vast majority of the people 

being detained in connection with this investigation are being detained on pretexts: 

they have committed a minor offense that gives law enforcement or immigration authorities the power to detain them even though they would not under normal circumstances be detained for such conduct. By all accounts, virtually all of the detainees are Muslims or Arabs, and most are noncitizens. 

An extraordinary wall of silence surrounds this preventative detention campaign. 

The public, though it has a right to know, has not been informed of even the most 

368

basic information such as who has been detained, why, for how long, and where the 

detentions have occurred. The Department of Justice has refused to release specific 

information about the detainees. 

For these reasons, the ACLU wrote to the Attorney General asking him for information about the detainees. There was no response to that letter. We posed similar 

questions to the Director of the FBI, Robert Meuller, at two meetings during the 

month of October. We posed similar questions to Commissioner Ziglar of the Immigration and Naturalization Service on October 30. When all those requests for information failed, we filed, along with other organizations, a request under the Freedom 

of Information Act. Our requests have not been satisfactorily answered and we are 

considering further legal action. This wall of silence undermines public confidence 

in the investigation and raises questions about the fairness of the process and the 

safety of those detained. 

Persons detained on immigration charges are of particular concern because their 

access to legal counsel is limited. Unlike defendants in criminal cases or persons 

held as material witnesses, those who face immigration charges are not entitled to 

counsel at government expense if they cannot afford an attorney. In New York, the 

immigration detainees are reportedly given a list of pro bono attorneys in the area. 

However, there is no guarantee that the attorneys listed are qualified to represent 

persons under these circumstances, nor is there any guarantee the detained person 

will have success contacting an attorney. In some cases, detainees are allowed only 

one telephone call a week to find an attorney. Predictably, many of those who are 

questioned are questioned without an attorney. 

Another area of concern that is just coming to light is the fact that the Depart 

of Justice is planning on questioning 5000 men based solely on national origin. This 

constitutes blatant racial profiling, as some police departments have recognized. 

EAVESDROPPING ON ATTORNEY-CLIENT COMMUNICATIONS

‘‘I want to assure you that in our effort to make sure that law enforcement can 

gain the intelligence that it needs in order to protect America, we are also mindful 

of our responsibility to protect the rights and privacy of Americans.’’ General 

Ashcroft, Press Briefing with FBI Director Robert Mueller, September 17, 2001. 

To add to the concerns about the detainees, the Justice Department, unilaterally, 

without judicial oversight, and without meaningful standards, has issued rules that 

give it the power to decide when to, eavesdrop on the confidential attorney-client 

conversations of a person whom the Justice Department itself may be seeking to 

prosecute. This regulation, implemented without the usual opportunity for prior 

public comment, is an unprecedented frontal assault on the attorney-client privilege 

and the right to counsel guaranteed by the Constitution. It is especially disturbing 

that these provisions for monitoring confidential attorney-client communications 

apply not only to convicted prisoners in the custody of the Bureau of Prisons, but 

to all persons in the custody of the Department of Justice, including pretrial detainees who have not yet been convicted of crime and are presumed innocent, as well 

as material witnesses and immigration detainees, who are not accused of any crime. 

28 C.F.R. § 501.3(f) (proposed amendment). 

The rule disregards long-standing Supreme Court precedent that protects the attorney-client .relationship. The Court has repeatedly emphasized the importance of 

the need for attorneys to communicate openly with their clients and has grounded 

this principle in both the long-standing attorney-client privilege as well as the Sixth 

Amendment right to adequate counsel. Regarding the attorney-client privilege, the 

Court wrote: 

The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public 

interests in the observance of law and administration of justice. 

Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682 (1981). Indeed, 

so well established is this privilege, and so compelling the societal interest in unobstructed communication between clients and their attorneys, that the Supreme 

Court has held that the privilege survives even after the client’s death. Swidler & 

Berlin v. United States, 118 S. Ct. 2081, 2088 (1998). 

Regarding the Sixth Amendment right to counsel the Court wrote: ‘‘[T]he Sixth 

Amendment’s assistance-of-counsel guarantee can be meaningfully implemented 

only if a criminal defendant knows that his communications with his attorney are 

private and that his lawful preparations for trial are secure against intrusion by the 

government, his adversary in the criminal proceeding.’’ Weatherford v. Bursey, 429 

U.S. 545, 554 n. 4, 97 S. Ct. 837, 843 n. 4, 51 L.Ed.2d 30 (1977). It is noteworthy 

that the Court took this quotation from the Brief for United States as Amicus CuVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00004 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
369

riae indicating that even the government recognizes the importance of private communications. 

The new rule gives the government the power to eavesdrop on a conversation between a detained person and his attorney any time the Attorney General finds that 

there is ‘‘reasonable suspicion’’ that a person in DOJ custody ‘‘may’’ use communications with attorneys or their agents ‘‘to further or facilitate acts of terrorism.’’ The 

Attorney General makes the determination as to what constitutes ‘‘reasonable suspicion’’ without any provision for judicial review. The rule purports to provide safeguards such as ‘‘notice’’ that recording is taking place and the establishment of a ‘‘privilege team’’ within the Department of Justice that has the responsibility to review attorney client communications, then seek judicial approval before giving the 

information to the prosecuting attorney (unless the team alleges an imminent threat 

of terrorism, in which case judicial review is unnecessary). 

This ‘‘privilege team’’ is not an adequate solution to safeguard the attorney-client 

relationship. Under the proposed regulation, the determination of what constitutes 

‘‘properly privileged materials’’ is made not by a neutral and disinterested judge, but 

unilaterally by the Justice Department itself. It will therefore be impossible for prisoners and their counsel to know in advance what portions of their intercepted communications the Justice Department will ultimately deem to be ‘‘properly privileged 

materials.’’ This uncertainty renders the privilege meaningless. ‘‘[I]f the purpose of 

the attorney-client privilege is to be served, the attorney and client must be able 

to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in 

widely varying applications. . ., is little better than no privilege at all.’’ Upjohn, 449 

U.S. at 393, 101 S. Ct. at 684. 

Although promulgated in the name of preventing terrorism, the DOJ rule goes beyond intercepting potential ‘‘terrorist communications’’ between a lawyer and client. 

The Attorney General can authorize eavesdropping on all of a detainee’s attorneyclient communications, even when the detained person has been convicted of no 

crime and is merely planning his defense with his attorney, or has been detained 

on immigration charges and is not accused of any crime at all. 

Lastly, this rule is unnecessary because current law already allows the government to seek a court order to record attorney client conversations if it has probable 

cause to believe that the attorney, with his client, is planning a serious crime such 

as terrorism. 

Like so many other post-September 11 proposals, this rule is an attempt to vest 

with the Department of Justice, instead of the courts, the power to determine when 

communications between a lawyer and her client should be stripped of their privileged status. It is particularly disturbing to note that the standard for the Attorney 

General to authorize eavesdropping on conversations between attorneys and clients, 

reasonable suspicion, is less stringent than the standard of proof necessary to obtain 

an ordinary search warrant or a wiretap warrant, which is probable cause. 

SECRECY

‘‘As we do in each and every law enforcement mission we undertake, we are conducting this effort with the total commitment to protect the rights and privacy of 

all Americans and the constitutional protections we hold dear.’’ Attorney General 

Ashcroft, testifying before the House Judiciary Committee, September 24, 2001

Americans have experienced the loss of privacy and the increase of secrecy take 

place with dizzying speed since September 11. Department of Justice regulations 

and Executive Orders have covered government operations with a shroud of secrecy. 

FREEDOM OF INFORMATION ACT AND PRESIDENTIAL RECORDS

Attorney General John Ashcroft has issued a new statement of policy that encourages federal agencies to resist Freedom of Information Act (FOIA) requests whenever they have legal grounds to do so. The new statement supersedes a 1993 memorandum from Attorney General Janet Reno, which promoted disclosure of government information through the FOIA unless it was ‘‘reasonably foreseeable that disclosure would be harmful.’’ The Ashcroft policy rejects this ‘‘foreseeable harm’’ standard. Instead, the Justice 

Department instructs agencies to withhold information whenever there is a ‘‘sound 

legal basis’’ for doing so. ‘‘When you carefully consider FOIA requests and decide 

to withhold records, in whole or in part,’’ the Attorney General advised, ‘‘you can 

be assured that the Department of Justice will defend your decisions unless they 

lack a sound legal basis....’’ It is noteworthy that Attorney General Ashcroft has 

committed to having DOJ defend the suppression of public access—rather than forcing the agency to provide its own defense if challenged in court. 

370

As with many of the Bush Administration’s new restrictions on public information, the new policy is only peripherally related to the fight against terrorism. Rather, it appears to exploit current circumstances to advance a predisposition toward 

official secrecy. At the same time that the government is acquiring more legal authority to obtain private information about people it is also cutting back on sharing 

the information that it has obtained, making it more difficult for individuals to learn 

what kind of files their government is keeping on them. 

Another example of Administration secrecy is an Executive Order, issued November 1, that gives President Bush—as well as former presidents—the right to veto 

requests to open any presidential records. Even if a former president wants his 

records to be released, the executive order permits Bush to exercise executive privilege to prevent their release. The order also gives President Bush, and former presidents, an indefinite amount of time to ponder any requests. Bush’s executive order 

openly violates the Presidential Records Act passed by Congress in 1978. 

In defending the executive order, the White House has argued that these new restrictions balance public access with ‘‘national security concerns.’’ This argument is 

specious given that national security documents are already shielded from public 

scrutiny. 

The Presidential Records Act was designed to shift power over presidential 

records to the government and ultimately to the citizens. This shifts the power back. 

ROLE OF JUDICIARY

‘‘The Justice Department will never waiver in our defense of the Constitution nor 

relent our defense of civil rights.’’ Attorney General Ashcroft, testifying before the 

Senate Judiciary Committee, September 25, 2001. 

Instead of enlisting the help of the judiciary in the fight against terrorism, the 

Department seems intent on writing the judiciary out of the picture altogether. The 

President’s executive order establishing military tribunals represents the ultimate 

form of court-stripping—literally removing Article III courts from the picture with 

no provision for judicial review of the tribunal’s actions. The Attorney General’s lawyer-client eavesdropping order likewise writes judges out of their Constitutional role 

in deciding wheather there is probable cause to strip communications of their privileged status. 

CONCLUSION

The Justice Department’s actions have antecedents stretching back to the earliest 

days of the Republic. The Alien and Sedition Acts of 1798, criminal restrictions on 

speech during World War I, the internment of Japanese-Americans following the attack on Pearl Harbor, and the blacklists and domestic spying of the Cold War are 

all instances in which the government was granted (or assumed) summary powers 

in a moment of crisis, to the inevitable regret of later generations. The diminution 

of liberty that accompanied these episodes was later understood as an overreaction 

to frightening circumstances; each is now viewed as a shameful passage in the nation’s history. After the immediate danger passed, it was recognized that the government had possessed ample powers to address the threats at hand; the new tools 

were unnecessary at best and dangerous at worst. 

Despite Attorney General Ashcroft’s promises to uphold the Constitution and protect civil liberties, his actions belie his rhetoric. Our democracy is in real danger 

if any one branch of the government becomes too powerful. From establishing military tribunals without Congressional approval to expanding wiretapping authority 

while limiting judicial oversight, this Administration is demonstrating its disregard 

for the other two branches of government. The precarious balance of powers is becoming dangerously tilted toward an excess of Executive Branch power. 

We are heartened that the Senate is taking the lead in reclaiming the Congressional role of overseeing the new police powers and hope this will be an ongoing 

practice. While all of the country is focused on waging the war against terrorism 

we ask Congress to make sure that the war on terrorism does not become a war 

on democracy.

Statement of Timothy H. Edgar, Legislative Counsel, Washington National 

Office, American Civil Liberties Union, Washington, D.C. 

f Senator Schumer and members of the Senate Judiciary Committee, 

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1 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept 

and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107–56. 

My name is Timothy H. Edgar and I am legislative counsel for immigration and 

national security issues for the American Civil Liberties Union (ACLU). The ACLU 

is a non-profit, non-partisan organization with approximately 300,000 members, 

dedicated to preserving the freedoms, rights, and checks and balances outlined in 

our Constitution. 

The ACLU welcomes this opportunity to submit our views on President Bush’s ‘‘Military Order’’ of November 13, 2001. We applaud your decision to exercise your 

oversight responsibilities with regard to the issue of military tribunals. We ask that 

you reclaim your proper constitutional role by determining for yourselves under 

what circumstances, if any, military tribunals should be used. 

The Military Order applies to some 20 million non-citizens in the United States, 

most of whom are legal residents, and any other non-citizen anywhere else in the 

world, and permits indefinite detention without trial in violation of a key detention 

compromise made in the USA Patriot Act. It could, at the stroke of a pen, be expanded to include United States citizens. 

These military tribunals will not observe the same procedures as ordinary courtsmartial under the Uniform Code of Military Justice and do not contain the protections available in the ordinary military justice system. They could, at the discretion 

of the Pentagon, permit secret trials, permit conviction or even execution on only 

a two-thirds vote of military officers, require less than proof beyond a reasonable 

doubt, deprive a defendant of counsel of their own choosing, and do away with the 

presumption of innocence. 

These fundamental rights not only ensure a fair trial of the accused, but the safety of the public. They help ensure that the government convicts the guilty—and only 

the guilty—thus making sure that the actual perpetrators of terrorism are not still 

at large because an innocent person stripped of constitutional protection was wrongly convicted. 

While the ACLU does not believe that the use of military tribunals is unconstitutional in all circumstances, the ACLU strongly opposes the Military Order because:

• Unlike President Roosevelt’s order permitting trial of spies and war 

criminals during World War II, the order was issued without Congressional 

authorization, as required by the Constitution, which gives Congress, not 

the President acting alone, the power ‘‘To define and punish. . .Offences 

against the Law of Nations.’’

• Regular courts have so far proven successful in prosecuting terrorism 

cases. Military tribunals should be authorized by Congress only if the regular courts cannot function in particular cases. 

• Military tribunals, if authorized by Congress, may only be used constitutionally used against clearly identified ‘‘unlawful enemy belligerents,’’—a 

class far narrower than all persons accused of terrorism crimes—and have 

normally been reserved for individuals captured in a zone of military operations. 

• Military tribunals, if authorized by Congress, must comply with basic 

international and constitutional due process standards, which are not provided for by the order.

The ACLU strongly urges members of this Committee to consider carefully the 

breadth of the Military Order, and to reclaim its constitutional power by deciding 

for itself under what circumstances, if any, military tribunals should be authorized 

in terrorism cases and to ensure that basic due process protections are preserved. 

As it stands, the Military Order dramatically upsets the basic constitutional system of checks and balances by reserving to the President alone the power to indefinitely detain and order the military trial of a terrorism suspect. It contains the following basic constitutional flaws: 

First, the order exceeds the President’s constitutional authority. It was issued 

without any authorization by the Congress to establish such tribunals and without 

a formal declaration of war. It circumvents the basic statutory requirement—at the 

heart of the compromise on detention in the USA Patriot Act 1—that noncitizens 

suspected of terrorism must be charged with a crime or immigration violation within seven days of being taken into custody, and that such detainees will have full 

access to the federal courts. 

Second, the breadth of the President’s order raises serious constitutional concerns. 

It permits the United States criminal justice system to be swept aside merely on 

the President’s finding that he has ‘‘reason to believe’’ that a non-citizen may be involved in terrorism. It makes no difference whether those charged are captured 

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2 Ex Parte Quirin, 317 U.S. at 21–23 (charging violations of Articles 81 & 82 of the Articles 

of War). 3See Pub. L. No. 84–1028 (1956) (repealing Articles 81 & 82). 

abroad on the field of battle or at home by federal or state police. It makes no difference whether the individual is a visitor or a long-term legal resident. Finally 

while the order applies in terms only to non-citizens, the precedents on which the 

President relies make no such distinction, permitting the order to be extended to 

cover United States citizens at the stroke of a pen. 

Third, the basic, fundamental rights guaranteed in United States courts and in 

ordinary courts-martial will not necessarily be afforded the defendants. The order 

purports to prevent review by any civilian court—including the Supreme Court of 

the United States—to ensure that even those rights ostensibly granted in the military proceeding are not violated. The rules and regulations that govern the tribunals are still being formulated. But, at the Pentagon’s discretion, trials can be conducted in secret, and evidence can be introduced without the defendant being able 

to confront it. Only two thirds of the military officers on the tribunal’s jury need 

find a defendant guilty, and the order provides for no meaningful appeal, even in 

cases involving the death penalty. 

Other basic rights remain unprotected. These rights seek to ensure that the government gets it right, punishing the guilty and permitting the innocent to be 

cleared. 

Fourth, there has been no showing that the order is necessary to advance justice 

or preserve national security. Civilian courts remain open and available to hear terrorism cases, and statutes and rules exist to safeguard classified information, ensure the safety of jurors and witnesses, and address other special concerns in terrorism trials. Military justice, while constitutional under certain circumstances 

which do not include all terrorism cases, is always a last resort. 

Finally, it is already plain that any verdict rendered by a secret military tribunal 

is likely to be regarded as illegitimate by a large portion of the world under international treaties to which the United States is a party. If Congress chooses to authorize the use of military tribunals in a narrow class of cases, such trials will still 

have to meet basic constitutional and international law standards. These standards 

have changed greatly since World War II and require basic due process for the accused. The procedures contemplated by the Military Order violate those standards. 

I. CONGRESS MUST DETERMINE WHETHER AND HOW TO ESTABLISH MILITARY

TRIBUNALS

The President does not have unchecked war power by virtue of his authority as 

Commander-in-Chief. Rather, he shares these powers with Congress. In particular, 

the Constitution gives Congress, not the President, the power ‘‘To declare War’’ as 

well as the power ‘‘To define and punish. . .Offences against the Law of Nations.’’

Art. I, § 8. 

Chief Justice John Marshall wrote plainly, ‘‘The whole powers of war being, by 

the constitution of the United States, vested in congress, the acts of that body can 

alone be resorted to as our guides in this inquiry.’’ Talbot v. Seeman, 5 U.S. (1 

Cranch) 1, 28 (1801). This is true whether Congress authorizes ‘‘general hostilities’’

by declaring war, or ‘‘partial hostilities’’ by authorizing the use of force in an military action short of war, as it has done here. Id. 

The Administration claims authority to establish military tribunals from the 

World War II-era precedent involving the trial of eight accused saboteurs, who landed on United States territory in 1942, shortly after the United States declared war 

on Germany. Their trial by military commission was upheld by the Supreme Court. 

Ex Parte Ouirin, 317 U.S. 1 (1942). But President Roosevelt relied on the authority 

Congress had given him by its formal declaration of war. Id at 25–26. This authority, the Supreme Court held, gave military commissions the sanction of Congress, 

a sanction which lasted ‘‘from [war’s] declaration until peace is declared.’’ In re 

Yamashita, 327 U.S. 1, 11–12 (1946). Roosevelt also relied on specific statutory authority permitting trials of enemy spies by military commission.2 This authority has 

since been repealed.3

By contrast, President Bush acted without a declaration of war and without any 

express Congressional authorization establishing military tribunals. Indeed, he 

acted without even consulting Congress. President Bush cites two Congressional enactments as authority for his order. Neither authorizes the establishment of military 

tribunals. 

First, President Bush relies on Congress’s authorization of the use of military 

force against those ‘‘nations, organizations or individuals’’ involved in the attacks on 

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4See Cong. Rec. H5638–5683 (Sept. 14, 2001). 5 It is true that the Quirin Court said that Congress had authorized trial of enemy spies not 

only under Articles 81 & 82 but also under the ‘‘law of war,’’ citing what is now 10 U.S.C. § 821. 

But the Quirin Court had no occasion to consider the constitutionality of a unilateral Executive 

Branch decision to invoke this authority in the absence of a formal declaration of war or of any 

specific authorization of trial by military commission, and against a far broader class of defendants. 

the World Trade Center and the Pentagon. See Pub. L. No. 107–40 (2001). But that 

resolution makes no mention whatsoever of the use of military tribunals to try terrorists, nor was this discussed during debate on the resolution.4 Members of the 

House and Senate Judiciary Committees who voted for the resolution, of both parties, have expressed strong reservations about the President’s unilateral decision, 

including Senator Arlen Specter (R–PA), Chairman Patrick Leahy (D–VT), Representative Bob Barr (R–GA) and Ranking Member John Conyers (D–MI). Furthermore, the President’s order applies to anyone accused of terrorism, not just those 

involved in the attacks of September 11. The order therefore exceeds the scope of 

the military force resolution in any event. 

Second, President Bush relies on sections 821 and 836 of Title 10 of the United 

States Code. Neither section authorizes the President’s action. Section 821 simply 

states that the extensive statutory provisions regarding courts-martial of members 

of the Armed Forces ‘‘do not deprive’’ other military tribunals, such as military commissions, of concurrent jurisdiction over offenders who ‘‘by statute or by the law of war’’ can be tried by such commissions. In other words, this section provides merely 

that if Congress authorized military tribunals, then they would not have to follow 

the same procedures as courts-martial. Likewise, section 836 give the President 

power to establish procedures for military tribunals, which, again, would be relevant 

only if Congress chooses once again to authorize them.5

Finally, the President did not merely act in the absence of Congressional authorization, but deliberately flouted Congress’s will. The Military Order permits indefinite detention of non-citizens suspected of terrorism with no provision for recourse 

to the courts, a power which the Administration had sought, but was denied, by the 

Congress in the USA Patriot Act. That Act requires that non-citizens suspected of 

terrorism be charged with a crime or grounds of removal from the country within 

seven days of being detained. USA Patriot Act, § 412, adding new INA § 236A. It 

expressly permits judicial review of the detention by habeas corpus, the ancient and 

constitutionally-protected remedy against unlawful executive detention. Id. The 

President’s action thus is directly contrary to Congress’s own considered view of the 

subject. 

In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Supreme Court made clear 

that the President cannot, on his own, authorize detention without trial, saying only 

Congress had that power. While the justices were divided on when Congress could 

authorize military trials, even those who supported a broad view of the government’s emergency detention powers agreed that when Congress put limits on those 

powers, the President was bound to respect them. See id. at 115; id. at 139–40 (concurring opinion). Because Congress had expressly permitted detention without trial 

under certain circumstances—but not those involving Milligan’s case—the President 

could not unilaterally expand those circumstances. 

Like the statute in Milligan, the USA Patriot Act expressly references the habeas 

corpus statute, 28 U.S.C. § 2241, and permits detention without charge for seven 

days—well beyond the presumptively constitutional 48-hour period.—See County of 

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). But Milligan an plainly holds that 

where Congress never ‘‘contemplated that such person should be detained in custody 

beyond a certain fixed period, unless certain judicial proceedings. . .were commenced against him,’’ id at 115, the President cannot evade those restrictions 

through the mechanism of a Military Order. 

II. THE PRESIDENT’S ORDER SWEEPS BROADLY, STRIPPING AWAY BASIC RIGHTS

The scope of the Military Order is breathtakingly broad, applying far beyond a 

narrow class of Al Qaeda leaders in Afghanistan. It applies to any individual whom 

the President determines he has ‘‘reason to believe’’ is (1) a member of Al Qaeda, 

(2) is in any way involved in ‘‘acts of international terrorism’’—a term which is not 

defined by the order—or (3) has ‘‘knowingly harbored’’ either of the above. It applies 

retroactively and contains no time limit, allowing for such trials not only of conduct 

years ago, but long after the current crisis is over. Any one of the more than 20 

million non-citizens in the United States, most of whom are legal residents, and 

anyone else in the rest of the world, could potentially face trial in a military tribunal. 

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6Likewise, supporters of the trial of accused terrorists fully expect (and desire) such trials to 

be used in domestic terrorism cases against United States citizens. Spencer J. Crona & Neal 

A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, 21 Okla. City U. L. Rev. 349, 372 (1996) (‘‘[C]itizenship of the accused 

poses no obstacle.’’) 7Significantly, similar court-stripping language in President Roosevelt’s order was held not to 

oust the Supreme Court’s authority to review the prisoners’ claims on habeas corpus in Ex Parte 

Quinn. In addition, Ex Parte Milligan makes dear that only Congress, not the President acting 

alone, has the power to suspend habeas corpus. Furthermore, the Supreme Court has made 

clear just this summer, in INS v. St. Cyr, 121 S. Ct. 2271 (2001), that Congress must explicitly 

invoke the habeas corpus statute, 28 U.S.C. § 2241, in order to modify the habeas corpus right, 

as it did in the USA Patriot Act. The order does not do this. 

If the term ‘‘acts of international terrorism’’ is defined by reference to any of several definitions of terrorism in the United States Code, the universe of potential defendants could sweep in not only those who are directly involved in or knowingly 

support violent activity, but also many others on the basis of otherwise lawful, nonviolent political activities and associations. For example, under the federal criminal 

code, material support of a terrorist organization, regardless of whether that support furthers terrorist activity, is defined as terrorism. 18 U.S.C. § 233913. Supporting a school or day care center which is allegedly linked to a terrorist organization could thus be considered ‘‘acts of international terrorism’’ and subject a person 

to a military trial. 

While the order is limited to non-citizens, the Supreme Court reaffirmed just this 

summer that ‘‘the Due Process Clause applies to all ‘persons’ within the United 

States, including aliens, whether their presence here is lawful, unlawful, temporary, 

or permanent.’’ Zadvydas v. Davis, 121 S. Ct. 2491, 2500 (2001) (emphasis supplied). 

Moreover, the constitutionality of trial by military commission is simply not based 

on the status of the offender as citizen or non-citizen. The order could easily be extended at the stroke of a pen to include United States citizens, who were tried before such commissions in the case of the saboteurs. In that case, the Supreme Court 

held that one saboteur’s status as a United States citizen ‘‘does not relieve him’’ from trial before a military commission. Quirin, 317 U.S. at 38. ‘‘[T]he offenders 

were outside the constitutional guaranty of trial by jury, not because they were 

aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal.’’ Id. at 44 (emphasis supplied).6

The Military Order contains only the barest of details concerning the conduct of 

military trials of terrorism suspects. The Order requires that prisoners be treated 

‘‘humanely’’ and that they be given ‘‘a full and fair trial.’’ Other than that, the procedures are left to be defined later, by the Secretary of Defense. Conspicuous by their 

absence are any of the basic guarantees that give life to the Constitution’s demand 

that trials be fair. Indeed, there is an express Presidential ‘‘finding’’ that ‘‘it is not 

practicable to apply. . .the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.’’ This ‘‘finding’’ must be taken into account in the Secretary of Defense’s regulations regarding trial by military commission. 

The procedures that are defined do not inspire confidence. A defendant’s right to 

confront the evidence against him or her is ominously curtailed by provisions prohibiting the disclosure of classified information—with no procedure for an adequate 

summary to take its place. The requirement of proof beyond a reasonable doubt is 

not guaranteed. The military tribunal is to try both facts and law, meaning that 

military officers—not Congress -will determine what constitutes a violation of the 

(otherwise undefined) ‘‘law of war’’ permitting execution or other punishment. Coerced confessions may be admissible, along with evidence obtained illegally. The 

only express requirement is that evidence must have ‘‘probative value to a reasonable person.’’ Defense counsel will be chosen by the United States military, not the 

accused. 

A two-thirds vote of military officers is required for conviction and sentence, 

which may include the death penalty. There is no direct appeal, except to the President himself or the Secretary of Defense as his designee the very officials who determine there is ‘‘reason to believe’’ a defendant is a terrorist or harbors terrorists. The 

order also provides that the accused ‘‘shall not be privileged to seek any remedy or 

maintain any proceeding, directly or indirectly’’ in any court, whether federal, state, 

foreign or international.7

Finally, the entire trial can take place in secret, without any accountability to 

Congress, the press or the American people. The order permits military commissions 

to sit ‘‘at any time and any place’’ and expressly authorizes ‘‘closure’’ of the proceedings to public scrutiny. If those rights that the Secretary of Defense chooses to 

confer on the accused are violated, the order not only makes no provision for the 

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8 Burrus M. Carnahan, Lincoln, Lieber and the Laws of War The Origins and Limits of the 

Principle of Military Necessity, 92 Am. J. Int’I Law 213, 22325 (1998). Of course, Lincoln’s views 

of what was ‘‘necessary’ conflicted with that of the Supreme Court in the Milligan case. 9See, e.g., 18 U.S.C. § 3521. 10This is one reason why supporters of military justice for accused terrorists contemplate a 

very different process. See Crona & Richardson, supra, at 375 (complaining that ‘‘[t]he UCMJ 

uses a form of due process almost as elaborate as the civilian criminal justice system.) But neither international law nor domestic constitutional law permit the sacrifice of basic due process, 

even where military justice is permitted. 11Daniel M. Filler, Values We Can Afford-Protecting Constitutional Rights in an Age of Terrorism: A Response to Crona and Richardson, 21 Okla. City U. L. Rev. 409, 413 (1996). 

courts to stop it, but Congress, the press and public—key guarantors of our free society—may not even know about it. 

III. THERE HAS BEEN NO SHOWING THAT THE REGULAR COURTS ARE INADEQUATE

TO HEAR TERRORISM CASES

United States courts have proven they can successfully try terrorism cases. This 

severely undercuts the argument for military tribunals. Military tribunals, other 

than ordinary courts-martial, are adopted as a last resort to ensure justice when the 

civil courts cannot function, not as a method of avoiding available forums for justice 

by undercutting basic constitutional rights. 

The Supreme Court has said that military tribunals are used against ‘‘certain 

classes of offense which in war would go unpunished in the absence of a provisional 

forum for the trial of the offenders.’’ Madsen v. Kinsella 343 U.S. 341, 348 n.8 (1952) 

(emphasis supplied). Even President Lincoln regarded military justice as permissible only if justified by military necessity, and refused demands to create military 

courts except where made necessary because of the inability of the regular courts 

to act.8

Today, the regular criminal courts remain open to hear terrorism cases. Special 

statutes and rules exist to protect national security and to address other challenges 

of terrorism cases, such as preserving the safety of jurors and witnesses.9

The Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3, was enacted 

precisely to avoid forcing the government to disclose essential intelligence information during discovery or forgo prosecution of terrorists, spies or other dangerous 

criminals. It successfully accommodates the government’s need for secrecy with the 

fundamental imperative that an individual accused of crime must be able to confront the evidence against him and to challenge that evidence. It requires the government to provide the accused with an unclassifed summary of any classified evidence, which must be approved by a federal district judge as adequate to satisfy the 

standards of the statute and of the Constitution. 

Likewise, in prior terrorism cases, and other sensitive cases involving organized 

crime or international drug trafficking, the government has used special procedures 

to safeguard the identity of jurors and to ensure their safety. The federal witness 

protection program exists to protect witnesses from potential reprisal from terrorists 

or other criminals. 

Perhaps most importantly, the government has successfully prosecuted terrorists 

in the past. These include the trials of the original World Trade Center bombing 

conspirators, trial of conspirators in a foiled plot involving New York City tunnels, 

and the trial of those responsible for the bombings of United States embassies in 

Africa. Many of Al Qaeda’s leaders are already under indictment, and are simply 

awaiting capture. 

While those who support military tribunals argue that none of these prosecutions 

actually succeeded in preventing the attacks of September 11, that is not because 

previous defendants were acquitted. In fact, all such defendants have been convicted 

and sentenced to lengthy prison terms or death. The government cannot prevent attacks if it does not catch the perpetrators before the conspiracy is carried out, and 

the availability of a military court will do nothing to solve that problem. 

Some who support military tribunals have argued that regular criminal trials simply take too long and cost too much. In fact, however, there is no reason to believe 

that a fair military trial would necessarily take less time than a regular criminal 

trial. Trials of United States military personnel under the Uniform Code of Military 

Justice closely resemble many of the procedures used in criminal cases.10 Nor would 

there be any appreciable cost savings, since the lion’s share of the cost of trials is 

the cost of investigation. As one commentator notes, ‘‘Put simply, the crime must 

be solved’’—and that is true regardless of which forum will try the perpetrators.11

Punishment in civilian court can be both swift and severe. The Speedy Trial Act 

ensures that a criminal trial will not be subject to unreasonable delay. If the governVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00011 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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12For example, the Anti-Terrorism and Effective Death Penalty Act of 1996 amended 28 

U.S.C. § 2255 to place a one-year time limit on habeas corpus challenges to federal convictions. 

ment shows accused terrorists pose a danger to the community, the Bail Reform Act 

permits pretrial detention, resulting in immediate incarceration of the accused. Finally, if the death penalty is sought, limits on death penalty appeals enacted in previous antiterrorism legislation have greatly ‘‘streamlined’’ the death penalty appeals 

process, even at the expense of full and fair review of death sentences.12

Put simply, Congress has enacted very serious penalties for terrorism crimes, up 

to and including the death penalty. Terrorists have been tried, convicted, sentenced 

to death, and executed in the regular criminal justice system. Existing statutes protect the government’s interests in national security, in protecting witnesses and jurors, in securing the immediate detention of terrorist suspects, and other concerns 

said to require military tribunals. If the Administration needs additional safeguards 

in the regular criminal courts, it can ask Congress for them. And if the Administration identifies a limited class of cases which require the use of military tribunals, 

it can ask Congress to authorize them. 

Trial by a military tribunal will not necessarily result in swifter or surer punishment of the guilty—but, under the procedures permitted by the order, it does risk 

punishment of the innocent. Constitutional guarantees protect not only the rights 

of the innocent, but also the public safety because they help ensure that the government seeks conviction of the right people and if they are convicted, that they are 

actually guilty of the crimes charged. 

For example, the right to assistance of counsel of one’s own choosing helps ensure 

that a person is adequately represented and that the adversarial system at the basis 

of our criminal justice system can work to arrive at the truth. The requirement of 

a finding of guilt beyond a reasonable doubt also helps ensure that the innocent are 

not convicted. The right to see the evidence the government offers against the accused ensures an opportunity to refute, explain or put into context otherwise incriminating evidence. The right to a trial by a jury of one’s peers, presided over by 

an impartial judge, also helps ensure a process designed to arrive at the truth, not 

at a pre-ordained conclusion. 

Without enforcement of these rights, the government may focus on the wrong people, and even obtain convictions of innocent people, while the terrorists go free to 

engage in more acts of terror. 

IV. THE CONSTITUTION PERMITS MILITARY TRIBUNALS ONLY IN CERTAIN NARROW

CIRCUMSTANCES

The Military Order also fails to respect the careful limits that the Constitution 

has placed on the use of military tribunals even when authorized by Congress in 

time of war. If Congress chooses to authorize military tribunals, it must respect 

these limits. 

Military tribunals are not a substitute for criminal courts generally, but may be 

applied only to ‘‘unlawful enemy belligerents’’—a class which is far narrower than 

the universe of all persons who could be accused of terrorism crimes, particularly 

after the broadening of the definitions of terrorism in recent anti-terrorism legislation. For sound policy reasons, they have most often been reserved for those captured abroad in a zone of military operations. 

What are those ‘‘offenses constitutionally triable by military tribunal,’’ Quirin, 317 

U.S. at 44, as the Supreme Court determined was permissible in the trial of World 

War II saboteurs? While the line may be difficult to draw, it clearly does not extend 

to all offenses that could be labeled terrorism. We know this because of the 1866 

case the Supreme Court expressly chose not to overrule in Quirin—Ex Parte Milligan. That case establishes beyond all doubt that the Constitution does not permit 

all terrorism offenses to be tried in military tribunals. 

Lamdin P. Milligan was accused of very serious offenses, including ‘‘[violation of 

the laws or war,’’ arising from his alleged participation in a conspiracy organized 

by a group called the ‘‘Order of American Knights’’ or ‘‘Sons of Liberty.’’ 71 U.S. (4 

Wall.) at 5. The organization planned to seize munitions, liberate prisoners of war 

and generally to conspire in aid of the Confederacy. In short, Milligan was accused 

of being a terrorist. Yet his conviction was overturned by a unanimous Supreme 

Court. The Court found that Milligan could not be tried by a military tribunal because he was a citizen of a state which had not been in rebellion against the United 

States, had never been in the military, of either side, and the regular courts were 

available to hear any criminal case against him. Id. at 121. 

When the Supreme Court faced with the question whether Milligan permitted the 

trial of the saboteurs in Quirin, it was only with difficulty that the Court distinVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00012 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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13See Daniel J. Danelski, The Saboteurs’ Case, 1 Journal of Supreme Court History 61 (1996). 14 Id. at 68. A habeas corpus challenge was to be the prisoners’ only real appeal. While the 

military commission permitted review by the President, it seemed unlikely such review would 

be meaningful, as the President was mainly concerned with the most fitting method of execution. 15 Id. at 77–78. 16 Id. at 80. 

guished that precedent. It could not be distinguished on the grounds that Milligan

involved a citizen, since one of the saboteurs was a United States citizen. Instead, 

the Court said that the saboteurs’ case, unlike Mill, involved admitted agents of a 

hostile government ‘‘who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property....’’ 317 U.S. at 35. 

Whether today’s terrorists are more like Lamdin Milligan, or the World War II 

saboteurs, the Military Order applies far more broadly than the narrow class of 

enemy belligerents who may constitutionally be tried in a military commission, if 

such trials were authorized by Congress with appropriate safeguards. The Constitution plainly does not allow this. 

Finally, it should be noted that Quirin remains an exceptional case for other reasons as well, as we now know from historians. It was a rare case in which the government departed from its usual practice of using military tribunals only against 

captured enemy soldiers in a zone of military operations. Many of these revelations 

undercut any argument for relying on it today.13

When the World War II saboteurs were caught, following the defection of one of 

their number, there was an immediate public outcry. J. Edgar Hoover, then Director 

of the Federal Bureau of Investigation, was worried that the ease with which the 

saboteurs had penetrated the American coastlines and moved freely about the country would damage public morale—not to mention his own image. In public, he made 

it sound as though the FBI had solved the case on its own, without the extensive 

help of the defector. Indeed, other saboteurs may have intended to defect as well. 

A military trial would give the government greater secrecy—but this was needed not 

to protect national security, but to protect Hoover’s image. 

Lacking today’s extensive criminal laws against terrorism, the government was 

concerned that any offense for which the saboteurs would be tried would result in 

only a minor prison sentence. The government knew it was on shaky ground in 

using military tribunals where the criminal courts were open, under Milligan. Nevertheless, President Roosevelt made clear he intended to see the saboteurs punished, even at the expense of the Constitution. ‘‘I want one thing clearly understood, 

Francis,’’ he told Attorney General Francis Biddle. ‘‘I won’t hand them over to any 

United States marshal armed with a writ of habeas corpus. Understand?’’ 14 President Roosevelt need not have been so worried. The Supreme Court quickly affirmed 

the prisoners’ death sentences. The Court announced it would issue a full opinion 

later. The sentences were carried out. 

Upon further reflection, however, the justices found the case was not nearly as 

simple as they thought. Milligan was not so easily distinguished, and the justices 

found themselves disagreeing on basic points, some of which could have changed the 

result if they had been considered at the time. Only after Justice Frankfurter issued 

a remarkable, and unusual, patriotic plea for unanimity did the justices fall in 

line.15

Justice Frankfurter later remarked that Quirin ‘‘is not a happy precedent.’’ Justice Douglas said, ‘‘Our experience [in Quirin] indicated to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it. Because once the search for the grounds. . .is made, sometimes those 

grounds crumble.’’ 16 The Supreme Court’s record on civil liberties in World War II 

does not inspire confidence. It was, after all, only two short years between Ex Parte 

Quirin’s ‘‘bending’’ of constitutional rules and the most shameful Supreme Court decision of the century, which upheld the internment of Japanese Americans. See 

Korematsu v. United States, 323 U.S. 214 (1944). 

Under the Constitution, military tribunals can be used only in narrow circumstances. They must be authorized by Congress, and may be used only against 

clearly identified ‘‘unlawful enemy belligerents.’’ They have ordinarily been reserved 

for those captured in a zone of military operations, and their use in other situations 

has been questionable. The Military Order simply does not respect these basic constitutional limits on military tribunals. 

378

17See T.R. Reid, Europeans Reluctant to Send Terror Suspects to U.S., Washington Post, Nov. 

29, 2001, at A23. 

V. MILITARY TRIBUNALS MUST COMPORT WITH BASIC DUE PROCESS AND

INTERNATIONAL STANDARDS

Finally, and perhaps most importantly, the order utterly fails to account for the 

evolution of both international law and American constitutional law since World 

War II, when military commissions were last extensively used. It does not guarantee 

due process for the accused and could permit trials that our own government has 

said are fundamentally unfair and violate basic international standards. If Congress 

chooses to authorize military tribunals for a limited class of accused terrorist war 

criminals, it is imperative that such standards apply. 

In 1942, international human rights law was in its infancy. Today, a host of international instruments, including treaties to which the United States is a party, provide guarantees of fundamental due process to anyone imprisoned by the state. For 

example, Article 9 of the International Covenant on Civil and Political Rights 

(ICCPR), which the United States ratified in 1992, guarantees liberty and protects 

‘‘the security of the person’’ from arbitrary arrest and detention. Article 14 requires 

the accused to be given a fair trial. 

The procedures that the Military Order contemplates, however, fall far short of 

these standards, as the United States has recognized in its insistence on compliance 

with human rights around the world. For example, as noted in a letter to President 

Bush from Human Rights Watch, dated November 15, 2001, the United States government

• successfully insisted that a military terrorism trial in Peru against 

United States citizen Lori Berenson be set aside in favor of a trial which 

the State Department demanded be held ‘‘in open civilian court with full 

rights of legal defense, in accordance with international judicial norms,’’ • condemned Nigeria for convicting and executing environmental activist 

Ken Aiwa and eight others after a trial before a special military court, 

• condemned Egypt, in the State Department’s most recent human rights 

report, for using military tribunals against suspected terrorists, noting that 

‘‘military courts do not ensure civilian defendants’ due process before an 

independent tribunal,’’ • expressed serious concern about closed tribunals in Russia, where foreigners, including Americans, were convicted of espionage.

Already, these concerns have complicated efforts to extradite suspected terrorists 

from Spain and other European countries.17

Likewise, in 1942 the Supreme Court had yet to apply most of the guarantees of 

the Bill of Rights to trials in the state courts, viewing these as rights peculiar to 

the federal system. Over the next half century, however, many of the Bill of Rights’ guarantees were extended to trials in state court. These constitutional protections 

did not directly apply to state courts but instead were seen as fundamental to a fair 

system of justice. 

For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court 

found that the right to assistance of counsel, protected by the Sixth Amendment, 

was indeed a fundamental right that applied to the states under the Due Process 

Clause of the Fourteenth Amendment. In so ruling, the Court overruled an earlier 

case, Betts v. Brady, 316 U.S. 455 (1942) which had ruled the right was not fundamental to a fair trial. But the Military Order greatly restricts the right to counsel, 

who will be a military officer chosen by the Department of Defense. These Supreme 

Court decisions paralleled statutory reforms of the Uniform Code of Military Justice, 

which now uses judges, not lay military officers, and permits review by a civilian 

court and by the United States Supreme Court. 

So today, it is not sufficient for the Supreme Court to say, as it did in 1942, that 

the ‘‘Fifth and Sixth Amendments did not restrict whatever authority was conferred 

by the Constitution to try offenses against the law of war by military commission....’’ Quirin, 317 U.S. at 45. Under current law, even if trials are not held 

in a federal court, they must observe basic constitutional rights. If military tribunals 

were authorized by Congress today, they would have to observe basic constitutional 

norms. 

VI. CONCLUSION

The Administration’s proposal to substitute military tribunals for the regular justice system poses a profound challenge to this nation’s ability to preserve civil liberty as it combats terrorism in the wake of the heinous attacks on the World Trade 

379

18 Naftali Bendavid, Critics Attack Tribunal Proposal, Chicago Tribune, Nov. 15, 2001. 

19 Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120–21 (1866). 20

Center and Pentagon on September 11, 2001. The trial of crimes in our constitutional system includes a host of procedural protections vital to ensuring the government gets it right, punishing the guilty—and only the guilty. Some of these rights 

were affected by Congress’s passage of the USA Patriot Act. The President’s Military Order has the effect of rendering the compromises on detention of noncitizens 

made in the USA Patriot Act meaningless in those cases to which it applies. 

According to its supporters, the President’s Military Order does not simply limit 

constitutional rights in terrorism trials. It abolishes them altogether. The procedures to be followed under the President’s Order simply will not be a matter for 

the Constitution, but rather for the pleasure of the Executive. And if the Executive 

chooses to violate even those rights it decides to confer, the order purports to preclude review at any level of federal judiciary, including the Supreme Court of the 

United States. 

We are told, however, that military courts will only be used against accused terrorists. Attorney General Ashcroft informs us that, once accused of terrorism by our 

government, such persons ‘‘are not entitled to and do not deserve the protections 

of the American Constitution.’’ 18

It is worth repeating the Supreme Court’s firm rejection of a similar argument 

well over a century ago:

‘‘The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving 

more pernicious consequences, was ever invented by the wit of man than 

that any of its provisions can be suspended during any of the great exigencies of government.’’ 19

The Supreme Court made clear the stark choice that would face our nation if military rule was not expanded beyond the narrow circumstances permitted by the Constitution, but was permitted without Congressional authorization and where the 

civil courts were open, and their process, unobstructed. Then, the Court observed: 

‘‘Civil liberty and this kind of martial law cannot endure together; the antagonism 

is irreconcilable; and, in the conflict, one or the other must perish.’’ 20

20 Id. at 124–25. 

But does the advent of modern terrorism ‘‘change everything’’? The strength of our 

democracy has lied in our ability to resist such arguments. In Duncan v. 

Kahanamoku, 327 U.S. 304 (1946), the Supreme Court faced a similar argument 

when it considered the continued constitutionality of martial law in Hawaii, during 

World War 11, after the immediate threat of invasion had passed. The government 

insisted that the invention of nuclear weapons required new thinking for a new kind 

of war that would not permit the luxury of rights enshrined in an Eighteenth Century constitution. 

The Court rejected it. Justice Murphy said, ‘‘That excuse is no less unworthy of 

our traditions when used in this day of atomic warfare or at a future time when 

some other type of warfare may be devised.’’ Id. at 330–31 (Murphy, J., concurring). 

That future time may now be upon us, but the excuse is still unworthy of our 

Constitution. Trial by military tribunal represents the gravest possible abrogation 

of civil liberty. Such use must be carefully limited to the most pressing circumstances for civil government to survive. Congress must act to ensure that these 

limits, and its authority, remain intact.

f380

December 4, 2001

The Hon. Patrick J. Leahy 

433 Russell Senate Office Bldg. 

United States Senate 

Washington, DC 20510

The Hon. Orrin G. Hatch 

Ranking Minority Member 

United States Senate 

104 Hart Building 

Washington, DC 20510

Dear Senator Leahy and Hatch:

Enclosed is a Statement of Position of the American College of Trial Lawyers respectfully opposing the interim rule of the Department of Justice authorizing the 

monitoring by the Government of communications between prison inmates and their 

lawyers. 

The College consist of more than 5,000 invited members from the United States 

and Canada. to qualify for invitation to membership, our members must have a 

minimum of fifteen years of active trial experience and have been committed to the 

highest ethical standards. The College draws its members from the plaintiffs’ bar 

and the defense bar, and includes, as well, prosecutors and criminal defense lawyers. The College is a professional organization dedicated to improving the administration of justice. 

The interim rule is of profound concern to the College for the reasons set forth 

in the Statement of Position. I respectfully request that this letter and the Statement of Position be made part of the record of the important hearing being held 

on this matter by the Senate Judiciary Committee. 

Very Truly yours, 

STUART D. SHANOR

f President

Statement of American College of Trial Lawyers 

POSITION

The American College of Trial Lawyers (‘‘the College ’’) respectfully but firmly opposes the U.S. Attorney General’s recent promulgation of an interim rule authorizing the Government, without prior court approval, to monitor communications between persons confined in prison and their lawyers. 

The College, a professional organization consisting of more than five thousand 

lawyers invited to membership after a minimum of fifteen years trial experience, is 

dedicated to improving the administration of justice. The College recognizes the 

need for the Department of Justice to take action to combat terrorism. But those 

actions must not violate constitutional and other important legal rights related to 

the attorney-client privilege. They must not violate the constitutional right of those 

imprisoned to the effective assistance of counsel. 

The attorney-client privilege is essential to our adversary system of justice. As 

Chief Justice Rehnquist has stated for the Supreme Court, ‘‘[Its purpose is to encourage full and frank communication between attorneys and their clients and 

thereby promote broader interests in the observance of law and administration of 

justice.’’

The Government’s unilateral usurpation of authority to monitor confidential communications between persons it has imprisoned and their lawyers will destroy this 

‘‘full and frank’’ communication. Under the rule, the lawyer and client are to be told 

their communications are being monitored. Knowing that the Government is listening to what is said, clients will not confide in their lawyers. Lawyers will not provide confidential advice to their clients. Indeed, their ability to do so will be undermined because their clients will not have given them the ‘‘full and frank’’ communication necessary for a lawyer to provide sound advice. This will defeat the purpose 

of the attorney-client privilege which, as Chief Justice Rehnquist has also explained, 

‘‘exists to protect not only the giving of professional advice to those who can act on 

381

it but also the giving of information to the lawyer to enable him to give sound and 

informed advice.’’ Further, this intrusion is unnecessary. Existing law allows for monitoring attorney-client communications under procedures which pass constitutional muster. 

First, the Government must have ‘‘probable cause’’ or ‘‘reasonable grounds’’ to establish that a lawyer is assisting or conspiring with his client and/or others to engage 

in terrorist activity, or is being used unknowingly for such a purpose. Second, the 

Government under existing law can then obtain authority from a court to wiretap 

or intercept these communications and, indeed, may do so without advising the lawyer and client that their communications are being intercepted. Importantly, however, prior court approval is a constitutional and statutory requirement. The Government cannot, in contrast to the interim rule, act unilaterally. 

‘‘Probable cause’’ or ‘‘reasonable grounds’’ to establish the likelihood of ongoing 

criminal conduct is also a constitutional and statutory requirement for such an intrusion. The far more lenient standard of ‘‘reasonable suspicion’’ permitted by the 

rule to monitor attorney-client communications does not satisfy this constitutional 

requirement, even if sanctioned by a judge. Certainly, that standard is unacceptable 

when the Government acts unilaterally, without court approval. 

To any claim that national security interests argue against permitting prior approval by any member of the federal judiciary, the Foreign Intelligence Surveillance 

Act (‘‘FISH ’’), if amended, could provide a statutory mechanism for requiring and 

obtaining prior judicial approval based on probable or good cause. 

It is no defense or justification, as the Department of Justice claims, that this rule 

will apply to only a few ‘‘inmates.’’ One is one too many. If allowed to apply to a 

few, whoever they may be, the lenient standard of ‘‘reasonable suspicion’’ to be used 

by the Government can readily have expanded application to many. 

Nor is it a defense or justification that a ‘‘firewalled’’ or separate Department of 

Justice ‘‘privilege team’’ will monitor the attorney-client communications and disclose their contents to investigators and prosecutors only with court approval. As 

explained above, the known existence of the monitoring already will have ‘‘chilled’’

the ‘‘full and frank’’ communication that the Supreme Court has held the privilege 

is designed ‘‘to encourage.’’ There will be virtually nothing of substance to monitor, 

but the inmate will have been denied effective assistance of counsel. ‘‘[T]he purpose 

of the privilege. . . to encourage clients to make full disclosure to their attorneys’,’’

as the Supreme Court has said, will have been completely frustrated. 

For more than sixty-five years, the United States Supreme Court has held that 

communications between lawyer and client intended to further a crime or fraud are 

not protected by the attorney-client privilege. We agree with this holding. But this 

determination is, under Supreme Court law, to be made by a court, not unilaterally 

by the Executive Branch, an adversary to and custodian of an inmate seeking legal 

advice from a lawyer. 

The American College of Trial Lawyers respectfully urges the Government to rescind the interim rule and not to promulgate it as a final rule.

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

f The American Council of Chief Defenders (ACCD) is gravely concerned by the 

U.S. Department of Justice Rule permitting monitoring of attorney-client communications. 

The new DOJ rule is not necessary to advance legitimate law enforcement efforts 

to secure public safety. Procedures and standards already exist which give law enforcement the ability to intercept communications under circumstances in which 

there is probable cause to believe a crime is taking, or is about to take place. 

The lack of a requirement for judicial intervention strips the criminal justice process of one of the important ‘‘checks and balances’’ which ensure a fair system. Requiring a judge to authorize monitoring of such communications is a critical means by 

which our system protects against harmful and unnecessary law enforcement mistakes or excesses. Judicial review is a critical component of the right to a fair process that is the foundation upon which our justice system is built. 

Monitoring attorney-client communications will deny individuals the right to a fair 

trial. The American public views access to counsel as an essential ingredient of a 

fair trial. The DOJ rule eradicates that right by precluding counsel, who are ethically bound to protect the privilege, from conversing with individuals whom they 

represent. Just as the doctor-patient privilege aids doctors in making accurate diagnoses, the attorney-client privilege is an essential aspect of the attorney’s function. 

382

Without honest communication and trust, attorneys are not equipped to advise clients, to test the sufficiency of the government’s evidence, or to fight a wrongful conviction. 

Communication with the chief executives of the Nation’s indigent defense agencies 

would be a more effective way to address legitimate security concerns in attorney-client communications. To the extent that a concern underlying the rule is that attorneys may unknowingly assist individuals who are plotting terrorist acts, law enforcement officials and chief defenders should work together to identify the ways in 

which terrorists might seek to manipulate attorneys or use them as conduits for 

coded messages, and to train attorneys in appropriate preventive measures. To the 

extent that the concern is that attorneys may knowingly assist or support acts of 

mass murder, the suggestion is an affront to the public defense professionals whose 

careers are dedicated preserving the fundamental democratic values enshrined in 

our system of justice. 

* * * * *

The ACCD is a leadership council of the National Legal Aid and Defender Association, consisting of chief executives of indigent defense systems throughout the 

United States and its territories. It is dedicated to securing fair justice systems by 

advocating for sound public policies and ensuring quality legal representation for 

people who are facing a loss of liberty or accused of a crime who cannot afford to 

hire attorneys.

STATEMENT OF

fPRINCIPLES

PRESIDENTIAL ORDER AUTHORIZING MILITARY TRIBUNALS

On November 13, President Bush signed a military order establishing a process 

of military tribunals for trials of any person other than an American citizen suspected of a terrorist-related offense, whether apprehended in the U.S. or abroad. 

The order violates the constitutional separation of powers, since the creation of military commissions has not been authorized by the Congress and is outside the President’s constitutional powers. 

The order strips away a variety of fundamental checks and balances on governmental power and the reliability and integrity of criminal judgments - safeguards 

which are present in other available adjudicative processes, whether the U.S. criminal justice system, military courts martial, or international courts. The procedures 

possible under the President’s order create an unacceptable risk of miscarriage of 

justice and conviction and execution of the innocent. By its example, the order undermines the rule of law worldwide, and invites reciprocal treatment of U.S. nationals by hostile nations utilizing secret trials, a single entity as prosecutor, judge and 

jury, no judicial review, and summary executions. 

The trial of individuals alleged to have played a major role in the attacks of September 11, at a time when the United States is engaged in open military conflict, 

presents legitimate security challenges, which must be accommodated in the narrowest possible manner consistent with well established safeguards guaranteed 

under the U.S. Constitution and international law, including:

Access to counsel of one’s choosing, and a guarantee of the effective assistance of qualified counsel for defendants who cannot afford retained counsel, 

encompassing confidential communication with counsel, funding for necessary and reasonable expert and investigative services, and adequate time 

to prepare and present a defense; 

An independent judicial officer presiding; 

The right to be informed promptly of the charges, and to be released 

promptly if not charged or otherwise lawfully detained under established 

federal or international law; 

The right to cross-examine witnesses, and to review and meaningfully test 

the reliability as well as the probative value of the government’s evidence, 

subject to existing safeguards for specific sensitive information under CIPA 

or similar procedures, as well as a guarantee of access to exculpatory evidence; 

Rights against self-incrimination and coerced confessions; 

A presumption of innocence; 

Proof beyond a reasonable doubt; 

Unanimous judgment as to both conviction and sentencing; and 

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Judicial review.

Individuals apprehended in this country must, of course, continue to be tried in 

civilian courts. If Congress elects to authorize military commissions or to use an existing international tribunal for the trial of terrorism suspects apprehended abroad, 

the undersigned organizations respectfully recommend that the above principles of 

due process, at a minimum, be accorded. 

Subscribed to by: 

NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

AMERICAN COUNCIL OF CHIEF DEFENDERS

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW

FIRST AMENDMENT FOUNDATION

NATIONAL COMMITTEE AGAINST REPRESSIVE LEGISLATION

WORLD ORGANIZATION AGAINST TORTURE USA 

THE MULTIRACIAL ACTIVIST AND ABOLITIONIST EXAMINER

NATIONAL A

fSSOCIATION OF CRIMINAL DEFENSE LAWYERS

Statement of American Federation of Labor and Congress of Industrial 

Organizations, Executive Council, Washington, D.C. 

AFL–CIO delegates convene in the wake of the most shocking and destructive 

acts of terrorism ever perpetrated on our soil. Our convention is graced by an exhibit portraying the names of 631 union members among the dead since Sept. 11 

and images of the heroes of that day. 

The AFL–CIO is firmly committed to bringing the perpetrators of these crimes 

and their patrons to justice, and supports the government’s military campaign to defend our nation, and all civilized society, in a global coalition to hunt and eliminate 

mass murderers, their networks and their sanctuaries. Nothing less is warranted 

amidst grave and unprecedented circumstances where international cabals intent on 

sowing death, disruption and dread have access to sophisticated technology and 

ruthlessly exploit the inherent vulnerabilities of a democratic and open society. 

But there is another front in America’s struggle to protect and extend freedom 

and security: home. And here, our love of liberty and of country compels us also to 

speak forcefully in opposition to a range of measures the administration has taken, 

or reportedly is contemplating, that threaten civil liberties, breach constitutional 

rights and, with tragic irony, hand our adversaries a partial victory by degrading 

the essential guarantees upon which our nation is founded. 

In October, at the administration’s prodding and at the height of post-Sept. 11 

anxiety, Congress enacted the so-called ‘‘USA PATRIOT Act,’’ which affords an 

array of new and powerful toots to law enforcement applicable to circumstances well 

beyond ‘‘terrorism’’ by any definition. This law permits the indefinite detention of 

non-citizens on minor visa violations; expands government discretion to engage in 

covert telephone and Internet surveillance; permanently expands its authority to 

conduct searches; enables the departments of justice and State to brand groups as 

terrorist organizations and deport their noncitizen members; grants the Federal Bureau of Investigation broad access to business records about individuals; blurs a 

vital line between foreign intelligence operations and domestic law enforcement 

functions by enabling the Central Intelligence Agency to gather information from 

other agencies about American citizens and residents; and imposes excessive background check requirements on commercial trot!: drivers licensed to transport hazardous materials, applies vague standards and denies full protection for the driver’s 

due process rights. 

Vigilance to ensure that the Executive Branch applies these sobering new powers 

responsibly presents a significant challenge to law enforcement authorities, congressional oversight bodies, the judiciary and our citizens. But even before the administration implemented these new prerogatives, it launched a series of additional initiatives by executive fiat, outside of the legislative process, and without even congressional consultation or prior public notice and discussion. Each of these initiatives is disturbing in itself; collectively, they emit the air of authoritarianism. 

The Justice Department has changed rules affecting federal inmates (dozens and 

non-citizens alike) by asserting authority to eavesdrop on attorney-client conversations upon a ‘‘reasonable suspicion’’ that an inmate may use such contacts to facilitate acts of ‘‘violence or terrorism.’’ An inmate and his or her lawyer would be informed that the attorney-client privilege does not protect such conversations or their 

other contacts ‘‘not related to the seeking or providing of legal advice.’’

384

This directive converts the attorney-client privilege from an essential protection 

in our system of justice that governs the scope of disclosures during actual litigation 

under judicial supervision into a sword justifying government interference with the 

heart of the attorney-client relationship. Ostensible safeguards of notice and limited 

disclosure will not temper this new rule’s profound chilling effect and its intrusive 

reach well beyond the detection of potential terrorism. 

Meanwhile, since Sept. 11, the government has detained over 1,000 persons with 

little and arbitrary public disclosure of their identities, the charges against them 

and the purposes of this dragnet We do know that this selective enforcement of 

minor offenses and immigration status is largely predicated on ethnicity, a disturbing echo of the disgraceful treatment of American citizens of Japanese descent 

during World War II. In America, we do not ‘‘round up the usual suspects,’’ yet the 

government acknowledges that it believes that at most a handful of those detained 

have any connection with the Sept, 11 atrocities. 

The president also has issued an executive order decreeing that non-citizens he 

selects who are arrested in connection with ‘‘terrorism’’ within or outside our borders will be tried in non-public trials, before special new military tribunals, barred 

from access to courts, denied review of evidence used against them at the prosecutor’s discretion, subject to evidence that does not meet even civil court requirements 

and exposed to conviction and sentence-including capital punishment—upon the decision of two-thirds of a panel composed of military officers who are subordinate to 

the government officials who select the defendants and oversee the prosecutors, and 

who alone can entertain an appeal. 

This order betrays an unwarranted lack of faith in our nation’s criminal justice 

system, which has ably and constitutionally served as the venue for trials of the 

1993 World Trade Center bombers, Timothy McVeigh and Manuel Noriega, among 

many others of the same ilk. And the new tribunals fall well short of the standards 

of openness and due process that have governed the International Court of Justice 

at The Hague, the Nuremberg trials following World War 11 and even our usual, 

longstanding system of military justice. And the new order could reach not merely 

the captured leadership of recognized terrorist groups, but any non-citizen deemed 

connected with ‘‘terrorism,’’ undefined; 20 million non-citizens dwell in our country 

today. Loose applications of such terms have provided purported justification for violations of the civil liberties of champions of workers throughout the world, from 

Martin Luther King Jr. to Nelson Mandela. 

As our Convention begins, we also team that the Justice Department may-again 

unilaterally-modify longstanding restrictions on FBI surveillance of political and religious organizations that were imposed 25 years ago to end decades of violations 

of citizens’ First and Fourth Amendment rights, and to prevent their recurrence. 

Such domestic spying could eventually sweep in unions and citizens organizations 

and threaten independent political and social activism. Even if existing policies 

merit review, there must be a deliberative process with congressional involvement 

and a full public airing and debate before any new policy is adopted. 

Our history teaches that external and internal threats can prompt repression of 

citizens and abuses of power. We must show other countries that we can and will 

treat their nationals as we have always, rightly, insisted that they treat ours. And 

we cannot accept excessive secrecy and unaccountable power that deny Americans 

the ability to question the authority and evaluate the conduct of their government. 

America will prevail, and impress our adversaries with the futility of their plans, 

only if we uphold our traditional liberties and standards of justice with the same 

decisiveness and vigor that we bring to our military efforts. The AFL–CIO urges the 

Administration to reconsider and relinquish hastily adopted policies that debase our 

constitutional traditions.

Statement of the American Immigration Lawyers Association, Washington, 

fD.C. 

OUR LIBERTY AND FREEDOMS TODAY

As we take steps to increase national security and mourn the loss of the thousands killed in the recent terrorist attacks, the American Immigration Lawyers Association (AILA) is deeply concerned about recent government actions. These actions 

threaten our fundamental Constitutional guarantees and protections that set our 

nation apart from others. While every step must be taken to protect the American 

public from further terrorist acts, those steps must not trample on the Constitution 

385

and on those basic rights and protections which make American democracy so 

unique and precious and gives us needed legitimacy within our country and in the 

world. 

The Department of Justice is engaged in a critically important law enforcement 

effort. AILA supports every effort to identify, prosecute and bring to justice the perpetrators of the heinous crimes of September 11, 2001. However, the arrest and continued detention of more than 1000 individuals in the wake of September 11 concerns us. Reliable reports of violations of due process failure to provide access to 

counsel, constant delays in hearings, failure to release in a timely fashion individuals for whom an immigration judge has set bond, hearings conducted in secret in 

the name of ‘‘protecting the public interest’’ for individuals who are only charged 

with technical immigration violations- are heightened by the failure of the Department of Justice to provide the most basic shred of information about the detainees. 

Who is being detained? What is the nature of the charges? How many detainees remain unrepresented by counsel? These and other questions remain unanswered two 

months after the initial arrests and despite repeated inquiries and the filing of formal FOIA requests. This silence is unacceptable. 

The announcement by President Bush that military tribunals will be convened to 

try suspected non-citizen terrorists, both in the U.S. and abroad, is alarming and 

unprecedented in the absence of a Congressional declaration of war and, with no 

input from Congress, appears to be an end run around the legislative branch of government. The democratic institutions of a democracy have time and again proven 

themselves strong enough to prosecute and bring to justice drug traffickers, mafia 

kingpins, terrorists like Timothy McVeigh and those responsible for the 1993 World 

Trade Center and the Kenyan and Tanzanian Embassy bombings. Our institutions 

are strong enough to bring to justice any terrorists responsible for the heinous 

crimes of September 11. The American people have demonstrated in the weeks since 

September 11 that they have ample courage to serve on juries and to prosecute and 

judge such acts. In the international arena, the U.S. has long supported international tribunals to try war criminals such as Slobodan Milosovic and opposed the 

use of secret military tribunals as they have been used by repressive regimes 

around the world. We should lead by example and strengthen international institutions, not undermine them. 

The interim regulations the Administration subsequently issued which provide for 

eavesdropping without warrant on protected attorney-client communication, and 

which also provide for automatic stays of immigration judge bond decisions, violate 

fundamental protections provided by the Constitution of the separation of powers, 

the independence of the judiciary and the right to counsel. 

Finally, the announcement this week that 5,000 individuals have been identified 

for questioning (males between the ages of 18 and 33 who entered the U.S. after 

January 1, 2000 and who came from countries where terrorist acts were planned 

or committed) also is cause for concern. While this questioning may assist the Department of Justice to compile information critical to the current investigation, 

every care must be taken to assure that the questioning is voluntary, that individuals be afforded the opportunity to have counsel present if they desire, and that no 

aura of suspicion is cast which would instill fear and distrust within the very individuals and communities whose cooperation the Department of Justice seeks in its 

investigation. An over-wide net runs the danger of amounting to discriminatory 

profiling. Care must be taken to assure that the proper balance is maintained between legitimate law enforcement and overzealous sweeping fishing expeditions. 

In the next months and years, our nation will face many challenges. We must 

stand vigilant and not compromise our freedoms. Doing so will damage our liberty 

here and our credibility in the world.

Statement of Amnesty International USA, New York, New York 

f HUMAN RIGHTS ORGANIZATION URGES REVOCATION OF EXECUTIVE ORDER

PERMITTING MILITARY COMMISSIONS

(WASHINGTON, DC)—Amnesty International, the world’s largest grassroots 

human rights organization, today urged Congressional leaders to preserve human 

rights and civil rights protections as law enforcement officials seek the perpetrators 

and accomplices of the September 11 attacks. The organization also announced that 

it has mobilized its worldwide membership to oppose the use of military commissions in response to the attacks in New York and Washington. 

386

‘‘Indefinite detention of alleged suspects, ethnic and racial profiling, and secret 

military trials are not acceptable law enforcement responses, even to events as reprehensible as the September 11 attacks,’’ Curt Goering, Amnesty International 

USA’s Senior Deputy Executive Director, said as the Senate Judiciary Committee 

convened hearings on the Bush Administration’s law enforcement efforts. ‘‘Eroding 

fundamental human rights principles at home will damage US efforts to exert leadership abroad, perhaps irrevocably.’’

In an Urgent Action appeal sent Tuesday, Amnesty International asked its members worldwide to contact President Bush, Secretary of State Colin Powell and Attorney General John Ashcroft urging that the executive order permitting military 

commissions be revoked. The appeal noted that use of such commissions would undermine international cooperative efforts, citing Spain’s refusal to extradite suspects 

to face military trials. 

In a 26-page memo to Attorney General Ashcroft, also sent Tuesday, Amnesty 

International detailed a range of concerns about recent actions taken by the Department of Justice. ‘‘Amnesty International recognizes the government’s obligation to 

take all necessary measures to investigate the crimes of September 11 and protect 

national security,’’ wrote Susan Lee, Program Director, Americas, in a letter accompanying the memo. ‘‘However, we share the concerns expressed by many individuals 

and organizations that the government may be violating its equal obligation to ensure that any such measures include safeguards for the protection of the fundamental rights of those arrested or detained.’’

In addition to objecting to the proposal to use military commissions, Amnesty 

International raised a number of other concerns in the memo, including the duration of detention, detainees’ adequate access to legal counsel and family, and the 

conditions of detention. Lack of information on those detained prompted the human 

rights organization to join in filing a Freedom of Information Act request with the 

Department of Justice to learn the names, locations and charges against the detainees. 

The organization made a series of recommendations, including:

Make public information on the total number of people arrested to date in 

connection with the September 11 investigation: dates and place of arrest; 

the number still detained and the reasons for the detention; length of time 

in detention; place of detention; and data on the race or ethnicity of those 

detained. Provide such information regularly on future arrests. 

Ensure that no one is held incommunicado while in custody. 

Publicly reaffirm the US government’s unequivocal opposition to the use of 

torture, suggesting the US government enact a law making torture a federal crime. 

Ensure that INS standards for the treatment of immigration detainees and 

asylum seekers, introduced into some facilities earlier this year, are extended to all facilities housing such detainees and are strictly monitored 

and followed.

‘‘It is precisely during challenging times such as these that governments must be 

especially scrupulous in their adherence to human rights principles,’’ said Goering. 

‘‘Otherwise, the very values worthy of protection themselves become casualties, diminishing all of society.

Statement of William F. Schulz, USA Executive Director, Amnesty 

’’

International, Washington, D.C. 

f Amnesty International urges President Bush to rescind the executive order creating secret military commissions to try suspects in the September 11 attacks. 

The trial of those responsible for these heinous attacks will represent one of the 

most important events in international justice since the Nuremberg Tribunal following World War II. Secret trials conducted with secret evidence may help sate the 

appetite of some who want revenge, but they will not guarantee justice. If our goal 

is ensuring justice and preventing similar attacks in the future—then we should do 

everything in our power to hold fair public trials that present the case against the 

accused to the victims, to the American people, and to the world. 

Resorting to secret military tribunals that lack appropriate due process guarantees will only encourage others to question the legitimacy of the trials and the competency of the US justice system. 

387

1Set out in the Geneva Conventions of 1949

Justice can best be served through public trials in civilian courts that adhere to 

international standards and give the victims of these heinous crimes the opportunity 

to witness the proceedings and the results. 

UNITED STATES OF AMERICA 

MEMORANDUM TO THE US ATTORNEY GENERAL—AMNESTY INTERNATIONAL’S CONCERNS

RELATING TO THE POST 11

SEPTEMBER INVESTIGATIONS

INTRODUCTION

More than 1,100 people, mainly non-US nationals, have been taken into custody 

in the USA during the investigations into the attacks on the World Trade Center 

and the Pentagon on 11 September 2001. Many of them have reportedly been held 

under new government powers to detain people for questioning for an extended period before being presented to a court. Very little public information has been made 

available to date regarding the details of these detentions and information on some 

cases has been sealed through court orders. It is unclear at present exactly how 

many people remain in custody, although it is believed that hundreds may still be 

detained. Sources have indicated that only a small number of these individuals are 

being held as ‘‘material witnesses’’ and it remains unclear as to whether any-one 

has yet been charged in connection with the 11 September attacks. Many of the detainees are reported to be held on federal, state or local criminal charges unrelated 

to the attacks, or are detained because of alleged immigration violations. 

Amnesty International recognizes the government’s obligation to take all necessary measures to investigate the crimes of 11 September and protect national security. However, the organization is concerned that the government may be violating its equal obligation to ensure that any such measures include safeguards for 

the protection of the fundamental rights of those arrested or detained. Under international law, even in states of emergencies, certain basic rights may not be suspended, including the right of every person not to be subjected to arbitrary detention, torture or other cruel, inhuman or degrading treatment or discrimination on 

the grounds of race, colour, sex, language, religion or social origin. Other rights 

which may not be suspended include the right of everyone charged with a criminal 

offence to be presumed innocent until proved guilty according to law, and certain 

fair trial rights under international humanitarian law, which must be respected 

even in times of armed conflict.1

Over 300 ‘‘terrorist’’ suspects are reported to have been detained in other countries since 11 September at the behest of the US authorities. Arnnesty International 

is urging the US Government to promote and protect international human rights 

standards in the investigation of these cases too. It is further calling on the US government to fully respect all relevant safeguards if it intends to seek the extradition 

of any of these individuals. In addition, the organization reiterates its opposition to 

the proposed military tribunals to try foreign nationals accused of links to ‘‘international terrorism’’. 

The USA is a state party to various international human rights treaties—including the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) whose fundamental principles Amnesty International fears are threatened in the context of the investigations into the 11 September attacks. Yet it is precisely during challenging times such as these that governments must be scrupulous in their adherence to such principles. To do otherwise 

undermines rather than reinforces the search for justice. 

1. SAFEGUARDS RELATING TO ARREST OR DETENTION

International standards provide that all,persons who are arrested or detained 

(with or without charge) should be informed immediately of the reasons for the detention and notified of their rights, including the right of prompt access to and assistance of a lawyer; the right to communicate and receive visits; the right to inform 

family members of the detention and place of confinement; and the right of foreign 

nationals to contact their embassy or an international organization. Anyone arrested 

or detained who does not adequately understand or speak the language used by the 

authorities, has the right to be notified in a language they understand what their 

rights are and how to exercise them and to be provided with an interpreter if necVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00023 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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2These rights are contained, infer alia, under article 9 of the International Covenant on Civil 

and Political Rights (ICCPR), ratified by the USA in 1992; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted 

by consensus by the United Nations (UN) General Assembly in 1988; and the Basic Principles 

on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and 

Treatment of Offenders. 3The Human Rights Committee ( which monitors states’ compliance with the ICCPR) has 

stressed that ‘‘all persons arrested must have immediate access to counsel’’. The Body of Principles states that access to a lawyer may be restricted in the most exceptional circumstances 

‘‘to be specified by law or lawful regulations, when it is considered indispensable by a judicial 

or other authority to maintain security or good order’’ but that even here, this should not be 

delayed beyond a few days. The UN Special Rapporteur on Torture has recommended that, as 

torture is most frequently practised during incommunicado detention ‘‘. . .incommunicado detention should be made illegal and persons held incommunicado should be released without 

delay. Legal provisions should ensure that detainees should be given access to legal counsel 

within 24 hours of detention.’’ 4 Article 9(2) of the ICCPR states that ‘‘Anyone who is arrested shall be informed, at the time 

of arrest, of the reasons for his arrest and shall be promptly informed of any charges against 

him.’’ 5 Article 9(4) of the ICCPR states: ‘‘Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide 

without delay on the lawfulness of the detention and order his release if the detention is unlawful.’’

6For example, the attorney retained in the case of three immigrants from Mauritania picked 

up in Ohio on immigration violations in late September still had not met with them two weeks 

later as they had been moved several times to jails in Indiana, Kentucky, Tennessee and Louisiana. 7Principle 16(1) of the Body of Principles states ‘‘Promptly after arrest and on each transfer 

from one place of detention or imprisonment to another, a detained or imprisoned person shall 

be entitled to notify or to require the competent authority to notify members of his family or 

other appropriate persons of his choice of arrest, detention or imprisonment or of the transfer 

and of the place where he is kept in custody.’’

essary.2 These rights are important safeguards against arbitrary deprivation of liberty and incommunicado detention. Incommunicado detention has been condemned 

by the US Government and non and intergovernmental organizations as a serious 

human rights violation that often leads to other abuses, including torture. 

Although US law requires that a detainee be informed of the right to counsel immediately upon arrest, Amnesty International is concerned that some of those arrested after 11 September were denied prompt access to counsel and were unable 

to inform their families of their whereabouts. Some detainees are reported to have 

been denied access to counsel for up to a week—far longer than is considered acceptable under international standards, even in emergencies.3 In some cases, families 

have reported difficulty finding out where, or even if, their relatives have been detained. 

Detainees (some of whom were later released) have also reported being held for 

days without being informed why they were detained and without being questioned, 

contrary to international standards.4 Several detainees report having been effectively cut off from the outside world for two weeks while their families searched for 

them. Others have reportedly been held for weeks after being cleared by the FBI 

of any criminal violations. Amnesty International has spoken to several lawyers who 

say they had difficulty in finding out why their clients were being held. The lack 

of information and secrecy surrounding detentions may prevent people from being 

able effectively to challenge their detention another important right under international law.5

Frequent transfers of detainees to different places of detention, sometimes to different US states, can also serve to perpetuate the secrecy surrounding detention and 

undermine the detainee’s ability to receive assistance of legal counsel.6 International 

standards provide that detained persons have the right not only to notify their family promptly of their arrest but also of any transfer and the place to which they have 

been transferred.7

Concern has also been raised that foreign nationals may not have been given an 

opportunity in all cases to seek the assistance of their embassy or a country representative on arrest, as provided under the Vienna Convention on Consular Relations, which the USA ratified without reservations in 1969. Although they may 

choose not to exercise this right, all foreign nationals must be informed of their 

right to contact their consulate immediately upon arrest. It is the responsibility of 

the Department of Justice to ensure this right is protected whether or not the detainee is in federal or local custody and, where requested, to arrange without delay 

for contacting their consulate. 

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8 United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture, adopted in October 1998, as part of the Foreign Affairs Reform and Restructuring Act. 9 Under the Refugee Convention, ‘‘Acts of terrorism’’ may be recognized grounds for exclusion 

from refugee status when they constitute crimes against peace, war crimes, crimes against humanity, serious non-political crimes outside the country of refuge, or acts contrary to the purposes and principles of the United Nations (Article IF of the Convention). 10The standards were introduced in January 2001 at 18 INS-owned and operated detention 

centres and facilities operated under contract by Corrections Corporation of America and 

Wackenhut. They were due to extend to some of the largest jails housing INS detainees under 

contract in June 2001. However, there are many smaller facilities and local jails which continue 

to house INS detainees where the standards (which are due to be introduced gradually) are yet 

to be applied. 

2. RIGHTS OF IMMIGRATION DETAINEES AND ASYLUM SEEKERS

Concern has been expressed that people held in the post- 11 September sweeps 

for immigration violations who in the USA have no right to government-assigned 

legal counsel—may be subject to summary removal proceedings without having the 

opportunity to defend themselves or obtain legal advice. A number of those arrested 

are reported to have agreed to voluntary departure soon after being taken into custody and it is unclear whether all had an opportunity to be legally represented. 

The Immigration and Naturalization Service (INS) has issued guidelines which 

provide that INS detainees should be immediately informed of organizations able to 

give free legal assistance. However, Amnesty International is informed that these 

standards are not legally enforceable or consistently applied, particularly where 

such detainees are held in local jails. Immigration lawyers’ groups say they fear 

many may be in detention without an effective opportunity to contact a lawyer or 

other representative. Some detainees arrested since 11 September report not being 

allowed to make phone calls for several days, or being moved to different locations, 

without being able to inform their families or lawyers. 

Some of those detained may be asylum seekers, seeking protection from 

refoulement to a country where they are at risk of human rights violations, including torture. The USA has enacted legislation, in keeping with its obligations under 

the Convention against Torture (see below), which states that ‘‘[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary 

return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture’’.8

Amnesty International urges that all asylum seekers have an opportunity to have 

their claims assessed in a fair and satisfactory procedure, as required under the 

1951 Convention relating to the Status of Refugees (UN Refugee Convention). International standards provide that, as a general rule, asylum seekers should not be detained; those who are detained because of criminal violations or on security grounds 

should still have a full and fair hearing of their claim, and be able to see and challenge any evidence presented against them. No-one should be prevented from lodging an asylum application. Any determination to exclude an individual from refugee 

status on grounds recognized under the 1951 Convention should only be made after 

full consideration of the claim in a fair and satisfactory procedure.9 A preliminary 

consideration that someone might fall under the provisions of the exclusion clauses 

should not hinder the full examination of the claim for asylum. No one should be 

forcibly removed without having had their individual need for protection assessed, 

with all the safeguards provided in human rights (including the right to be informed 

of the evidence, to rebut the evidence and to appeal against a decision to exclude). 

Amnesty International also urges that the Department of Justice ensure that 

new, detailed INS standards for immigration detainees and asylum seekers introduced into some facilities earlier this year—which include better provision for attorney contact, contact with consular officials and visitation—are extended to all facilities, and rigorously applied.10

3. POWERS TO DETAIN NON-NATIONALS UNDER NEW ‘‘ANTI-TERRORIST’’ LEGISLATION: 

THE PATRIOT ACT

(1). Right to be brought promptly before a judicial or other authority 

Amnesty International understands that many of the post-11 September detentions took place under an emergency directive issued by the Attorney General on 

19 September. This extended the time a non-national could be held in Immigration 

or Naturalization Service (INS) custody without charge from 24 hours to 48 hours 

‘‘or to an additional reasonable time, if necessary, under an emergency, or in other 

extraordinary circumstances.’’

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11 Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept 

and Obstruct Terrorism (USA PATRIOT) Act. 12Definitions of terrorism for which non-nationals can be detained or deported under the Act 

are extremely broad and include membership of, or any ‘‘material support’’ for, any foreign or 

domestic organization designated as a ‘‘terrorist organization’’ by the Secretary of State or any 

group that publicly endorses acts of terrorism; and membership or support for (including soliciting funds) any group not designated as ‘‘terrorist’’ but deemed to support terrorism in some 

way. In the latter cases, the onus on the non-national to prove that his or her assistance was 

not intended to further terrorism. 13Principle I 1(I) of the Body of Principles states: ‘‘A person shall not be kept in detention 

without being given an effective opportunity to be heard promptly by a judicial or other authority.’’ This applies to all detainees, whether or not held on a criminal charge. Article 9(3) of the 

ICCPR states: ‘‘Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled 

to trial within a reasonable time or release..’’ 14Members of the Human Rights Committee have questioned whether detention for 48 hours 

without being brought before a judge is not unreasonably long (Report of the HRC, vol 1 (A/

45/40), 1990, para 333, Federal Republic of Germany); in a death penalty case, the Committee 

ruled that a delay of one week from the time of arrest before the detainee was brought before 

a judge was incompatible with Article 9(3) of the ICCPR: ‘‘anyone arrested or detained in a 

criminal charge shall be brought promptly before a judge or other officer authorized by law to 

exercise judicial power...’’ (McLawrence v Jamaica, UN Doc. CCPR/Ci60/D/702/1996). the European Court of Human Rights has ruled in a UK case that detaining a person for four days and 

six hours before bringing him before a judge was not prompt access (Brogan et al, United Kingdom, 29 November 1988, 145b Ser. A33 at 62). 

This has since been superceded by the USA Patriot Act, ‘‘anti-terrorist’’ legislation 

passed by Congress which became law on 26 October 2001.11 Section 236(A) (a) of 

the Act provides for the mandatory detention of a non-US national based on the Attorney General’s certification that he has ‘‘reasonable grounds to believe’’ that the 

individual is a ‘‘terrorist’’, or supporter of ‘‘terrorist activity’’ or ‘‘is engaged in any 

other activity that endangers the national security of the United States.’’ 12 A person 

detained under this provision may be held for up to seven days without any charges, 

after which removal proceedings or charges must be instituted, or the detainee released. 

While seven day detention without judicial supervision is not as open-ended as 

the emergency directive issued on 19 September, Amnesty International believes 

that it may be contrary to international standards which provide that all arrested 

or detained persons should be brought promptly before a judge or judicial authority.13 Although no specific time limits are expressly contained under international 

standards, seven-day detention before someone is initially brought before a court exceeds what has been considered acceptable in cases reviewed by the Human Rights 

Committee as well as the European Court of Human Rights.14

Judicial review is an essential safeguard against arbitrary arrest or detention and 

to protect the well-being of those detained. Article 9(1) of the ICCPR provides that 

‘‘Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention.’’ To ensure freedom from arbitrary detention, 

Article 9 (4) further provides that anyone ‘‘who is deprived of his liberty by arrest 

or detention shall be entitled to take proceedings before a court, in order that court 

may decide without delay on the lawfulness of his detention and order his release 

if the detention is not lawful.’’ The Human Rights Committee has stated that Article 

9(1) is applicable to all deprivations of liberty, including ‘‘immigration control.’’ Amnesty International urges that the seven day detention provision be subject to 

review. In the meantime, its application should be strictly monitored and anyone detained under this power should be informed of the specific grounds of the detention 

and be afforded prompt access to an attorney, relatives and consular representative 

if requested. 

(2). Power to detain non-nationals indefinitely 

Section 236 (A) (a) of the Patriot Act allows the Attorney General to continue to 

detain non-nationals certified as a danger to national security after removal proceedings have been initiated. Under the legislation, a non-national whose removal 

‘‘is unlikely in the reasonably foreseeable future’’ may be detained indefinitely, if the 

Attorney General considers that release ‘‘will threaten the national security of the 

United States or the safety of the community or any person.’’ People detained under 

this broad provision could include non-nationals who cannot be removed because 

they are stateless; whose country of origin will not accept them; or who are granted 

relief from deportation because they would face torture if returned to their country 

of origin. 

The legislation authorizes the Attorney General to detain people under the above 

provisions on mere suspicion that they are a threat to national security. Although 

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15The Act provides that ‘‘in general’’ judicial review of any action or decision made under Section 236 (A), including judicial review of the merits of the Attorney General’s certification, is 

available ‘‘exclusively in habeas corpus proceedings’’ (Section 236(A) (a) 7 (b) 16 In the May 2000 ruling, the judge had ordered a new bail hearing, the first phase of which 

would be an open record hearing, after which the government would still be permitted to present 

classified information, but only on condition that a ‘‘meaningful summary’’ was provided to AlNajjar and his attorney. The open record hearing was held before another judge in August and 

October 2000, after which the judge ruled that there was no evidence that Dr A(-Najjar was 

a threat to national security. Dr Al-Najjar was released in December after the same judge went 

on to consider the government’s classified evidence, and concluded that it did not differ greatly 

from that presented during the open records proceeding and was again insufficient to constitute 

grounds for detention. 17Zadvydas v Davis et al., 000 U.S.99–7791 (2001). 

the act provides for habeas corpus review of the detention 15 and six-monthly reviews by the Attorney General at which the detainee can submit evidence, it is unclear how much information the government will be required to produce in support 

of the certification that the non-national is a ‘‘terrorist’’ or supports ‘‘terrorism’’. In 

the past, the Attorney General has detained non-nationals facing deportation on the 

basis of ‘‘secret evidence’’ of alleged terrorist links not made available to the detainees or their attorneys. Amnesty International considers that no-one should be detained on the basis of evidence they are unable to review or challenge. Such a procedure lacks the essential guarantees under international law to protect people from 

arbitrary or wrongful deprivation of liberty. 

Amnesty International raised its concerns about the use of secret evidence in a 

letter to the Attorney General in July 2000 about the case of Dr Mazen Al-Najjar. 

Dr Al-Najjar is a Muslim cleric and academic who was held in jail for three and 

a half years pending an appeal against a deportation order imposed for overstaying 

his student visa. He was denied bail on the basis of classified evidence introduced 

by the government that he was a threat to national security, which was reviewed 

in camera by a judge without either Dr AI-Najjar or his attorney being present. Dr 

Al-Najjar—who denies any involvement with terrorism—was given only a one-sentence summary of the ‘‘evidence’’. In May 2000 a US federal district judge ruled that 

the reliance on classified evidence to detain him breached his constitutional right 

to ‘‘confront and rebut that evidence’’ and to a ‘‘fundamentally fair hearing’’. He was 

freed in December 2000 after a further hearing at which a court found the evidence 

insufficient to justify detention.16 The Department of Justice has lodged an appeal 

against this ruling, which was still pending in November. 

On 24 November 2001, Dr Al-Najjar was again taken into custody after the I1‘’’ Circuit Court of Appeals upheld his final deportation order. As he is a stateless Palestinian who has no country to return to, his case may become a test case under 

the new detention provisions, should he continue to be detained. Last June the US 

Supreme Court issued a landmark ruling stating that the indefinite detention of 

non-US nationals whose final order of removal had been entered, but whose deportation was not ‘‘reasonably foreseeable’’, was unconstitutional. The ruling applied to 

several thousand foreign nationals convicted of crimes in the USA who could not be 

deported because there was no country which would accept them. The ruling left 

open the possibility of the government continuing to detain non-nationals when limited to ‘‘specially dangerous individuals and subject to procedural protections’’.17 The 

ruling led to the release under strict supervision of more than 300 foreign nationals 

who were not considered a danger to the community. However, the Department of 

Justice has recently published new regulations invoking ‘‘special circumstances’’

such as terrorism, national security, danger to the community or health reasons (including mental disorders or contagious diseases) to keep ‘‘deportable’’ foreign nationals in custody. These rules apply in addition to the provisions of the Patriot Act. 

Amnesty International believes that states should not detain people who are considered to be a threat to national security unless they are charged with recognizable 

criminal offences promptly and tried without delay or action is being taken to extradite or deport within a reasonable period. Amnesty International opposes the indefinite detention of foreign nationals for whom there is no realistic possibility of deportation being effected. Such a measure has the same effect as a severe criminal sanction (deprivation of liberty) but without the due process standards and safeguards 

contained in the criminal justice system. Amnesty International considers that this 

violates fundamental human rights and that anyone detained in such circumstances 

should be charged with a recognizably criminal offence and brought to trial or released. 

The legislation requires the Attorney General to report to Congress every six 

months on the number of non-US nationals certified as a suspected ‘‘terrorist’’ or 

national security risk; the grounds of the certification; the nationalities of the indiVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00027 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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18 As well as better access to counsel, the standards cover a range of conditions including improved visitation with family and friends; rights of detainees to exercise their religion free from 

harassment and to participate in group religious activities. 

viduals so certified; length of detention; number granted relief from removal; number removed; number no longer certified; and the number released from detention. 

This clause is important in providing public scrutiny of how the expanded removal/detention provisions will be implemented. However, this should not prevent 

the government from providing information on arrests and detentions as they take 

place. Steps should be taken to avoid the secrecy surrounding the present detentions 

(see below). 

While Amnesty International’s comments in this document are limited to the due 

process aspects of the detention powers under the Patriot Act, there are also concerns about the expanded definitions of ‘‘terrorism’’ under the Act, which civil rights 

groups fear could be used against non-nationals on the basis of their political beliefs 

and associations, who have not engaged in or supported ‘‘terrorism’’ (see note 9, 

above). Amnesty International will be monitoring implementation of the act and will 

present further comments in due course. 

4. CONDITIONS OF DETENTION—ILL-TREATMENT

Amnesty International is concerned that many of those detained during the 11 

September sweeps are held in harsh conditions, some of which may violate international standards for humane treatment. There have also been allegations of physical and verbal abuse of detainees by guards, and failure to protect detainees from 

abuses by other inmates. 

There has been concern for some years about the poor conditions under which immigration detainees are held in INS detention facilities or local jails. Although the 

INS promulgated new standards for the treatment of INS detainees earlier this 

year, as noted above, these standards are not universally applied (see section 2).18

Amnesty International has received reports suggesting that immigration detainees 

arrested after 11 September are being subjected to more punitive conditions than 

before in some facilities. There are also reports that people of Muslim or MiddleEastern origin are treated more harshly than other inmates. Reports include detainees being placed in solitary confinement and denied exercise; required to wear full 

restraints, including leg-irons, during visits; denied contact visits with families; 

given an inadequate diet; denied personal possessions and copies of books in Arabic, 

including the Quran. 

Amnesty International is also concerned by reports that some people travelling to 

the USA since 11 September have been detained on arrival for questioning at US 

airports on security grounds and subjected to cruel, inhuman or degrading treatment, including being denied food for long periods and kept in shackles. 

Examples of ill-treatment include:

• Hasnain Javed, a Pakistani student (held for three days in September for 

overstaying his visa) was allegedly beaten and had a tooth chipped by inmates who called him a ‘‘terrorist’’ while he was detained in jail in Wiggins, 

Mississippi. He reports that he tried to call for assistance through an intercom but guards failed to respond. Later that night he was allegedly 

stripped naked and again beaten by inmates; again guards failed to respond 

to his cries for help. 

• A Palestinian man detained since 22 September in a Texas jail for a visa 

violation, is reported to be held in solitary confinement with only one hour 

of exercise a week (in a small enclosed yard). He is shackled during noncontact visits with his family; denied personal property and, unlike other 

inmates, denied access to TV. 

• A Saudi Arabian man detained on an immigration violation in Denton 

County Jail, Texas, initially spent a week without a mattress, bedding, 

blanket or clock to tell him when to recite his Muslim prayers; his conditions improved only after an appeal by his attorney to the regional INS director. He was allowed to see his wife eight days after his arrest and was 

made to wear leg-irons during the second non-contact visit; he is still allowed far fewer visits than other inmates have with relatives. He has reportedly asked to remain in solitary confinement through fear for his safety 

if held with other inmates. 

• Detainees awaiting deportation in Mecklenburg County Jail, North Carolina, are alleged to have been stripped naked and blasted with cold air by 

guards in early November; the wife of one man reported that only inmates 

of Middle Eastern descent were subjected to this treatment and when her 

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19 Information on these and other cases was obtained through contact with lawyers and relatives by Amnesty International and media reports.

husband tried to complain of abuse during telephone calls, the calls were 

terminated by guards. 

• Five Israelis arrested on 11 September in New York were held incommunicado for about a week, and were allegedly interrogated by police while 

blindfolded and in only their underwear. 

• An elderly Maltese couple arriving in the USA in September for a vacation with their daughter (a US resident) were refused entry at Philadelphia 

airport, questioned extensively by INS officers and held overnight in a detention centre where they were allegedly denied all food and water, despite 

the woman being a diabetic. The husband (a 63-year old dermatologist with 

no criminal record) was kept in heavy wrist and foot chains until both were 

put on a plane home the next day.19

Some of the above would violate the prohibition of torture or other cruel, inhuman 

or degrading treatment under the Convention against Torture and the ICCPR. In 

addition, Article 10 of the ICCPR states that ‘‘All persons deprived of their liberty 

shall be treated with humanity and with respect for the inherent dignity of the 

human person’’. Some of the reported conditions fall short of specific provisions of 

the UN Standard Minimum Rules for the Treatment of Prisoners which stipulate, 

for example, that all prisoners and detainees should receive a minimum of one hour 

of outside exercise daily, and that restraints should be applied only when ‘‘strictly 

necessary’’ as a precaution against escape or to prevent damage or injury, and that ‘‘chains or irons shall not be used as restraints’’. Amnesty International urges the Department of Justice to ensure that all prisoners and detainees are treated humanely in accordance with the above international standards, whether in local or federal facilities, or at airports. We urge the 

department to fully investigate all allegations of abuse of INS and other federal detainees held in local and federal facilities. 

The recent standards promulgated for the treatment of immigration and asylum 

seekers should be extended to all facilities housing immigration detainees, including 

local and county jails. The INS should ensure that these are strictly monitored and 

adhered to. 

5. LACK OF INFORMATION ABOUT DETENTIONS

Amnesty International shares the concern expressed by many commentators and 

human rights advocates regarding the unprecedented levels of secrecy surrounding 

the 11 September detentions. While some information may be privileged on security 

or privacy grounds, the extraordinary lack of data does not appear to be justified 

or in the public interest. Without such data, it is impossible to assess how far the 

rights of those detained are being protected; the true extent of any abuses reported; 

whether or not there has been any practice of incommunicado detention on a systematic level; how effectively the authorities are dealing with such concerns. 

On 29 October, Amnesty International and a group of US human rights organizations made a joint formal request to the Department of Justice to provide detailed 

information under the Freedom of Information Act on the arrests and detentions, 

including the identities and nationalities of those detained; their current status and 

location; and whether they have legal representation. The letter also seeks information on ‘‘All policy directives or guidance issued to officials about making public 

statements or disclosures about these individuals’’ and on the identities of any 

courts giving orders to seal information in specific cases. 

The letter asks for the information to be provided urgently, referring to the ‘‘growing number of reports which, if accurate, raise serious questions about deprivations 

of fundamental due process, including imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury’’—and states 

that ‘‘...the unprecedented secrecy surrounding the detentions of several hundred individuals, which has now lasted for several weeks, in itself raises questions about 

the detentions’’ and ‘‘prevents any democratic oversight of the government’s re- sponse to the attacks’’. Amnesty International calls on the Department of Justice to provide the information requested without delay. 

6. DISCRIMINATION

Amnesty International welcomes the strong action taken by the Department of 

Justice to respond to attacks and acts of discrimination perpetrated against people 

perceived to be Muslim or of Middle-Eastern origin in the wake of 11 September. 

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20 Introductory remarks of the US delegation to the Committee in Geneva on 3 August 2001, 

during the Committee’s examination of the USA’s initial report on how it was implementing the 

provisions of CERD. 21 Article 5 of CERD calls on states to ‘‘. . .guarantee the right of everyone without distinction 

as to race, colour, or nationality or ethnic origin, to equality before the law’’, including ‘‘equal 

treatment before the tribunal and all other organs administering justice’’ and the ‘‘right to security of person and protection by the state against violence or bodily harm, whether inflicted by 

government officials or by any individual group or institution’’. Article 26 of the ICCPR states 

‘‘All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to 

all persons equal and effective protection against discrimination on any ground such as race, 

colour, sex, language, religion, political or other opinion, national or social origin, property, birth 

or other status.’’

We understand that the Civil Rights Division (CRD) of the Department of Justice, 

working with US Attorneys and the FBI, has opened more than 60 civil and criminal investigations into acts by private individuals committed in retaliation for 11 

September, including killings, death-threats, assaults, and attacks on mosques and 

businesses. 

The CRD has also set up a National Origin Working Group to combat ‘‘postterrorism discrimination’’ against targeted groups by receiving reports of ‘‘violations based on national origin, citizenship status and religion, including those related to housing, education, employment, access to government services, and law 

enforcement′′; referring cases to the appropriate federal authorities; conducting outreach work with communities; and working to ensure the provision of effective services to victims of civil rights violations. 

In welcoming these initiatives, we note that some concern has been expressed 

about the perceived, or potentially discriminatory effects of certain law enforcement 

measures, including the post-11 September detentions. It appears that many, if not 

most, of those detained in the 11 September investigations are Muslim men of South 

Asian or MiddleEastern origin. Amnesty International is aware that the security 

forces may be acting on a range of intelligence and other information when questioning suspects or making arrests. However, concern has been expressed that some 

people arrested in the 11 September investigations are being held in custody on relatively minor violations which would normally qualify for release on bail. As noted 

above, there are also complaints that some detainees who are Muslim or of MiddleEastern origin are being treated more harshly than other inmates while in detention. 

On 9 November 2001, the Attorney General issued a memorandum with instructions to federal prosecutors and state police anti-terrorist task forces to interview 

a further 5,000 named individuals in the USA on student, tourist or business visas. 

Although the names have not been released, sources have indicated that most people on the list are Middle-Eastern males aged between 18 and 33. Several state police chiefs have expressed concern about this directive on the ground that questioning immigrants who are not suspected of a crime -unless such interviews are 

strictly voluntary—may violate state laws and police guidelines which prohibit ‘‘ra- cial profiling’’ (unfair treatment by law enforcement officials, including stops and 

searches, on the basis of race or ethnic origin). 

The USA has ratified the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 5 of which calls on States Parties to undertake 

to prohibit and eliminate racial discrimination in all its forms and to guarantee to 

everyone the right to equality before the law. In its report to the UN Committee 

on the Elimination of Racial Discrimination in September 2000, the US Government 

stated that ‘‘Racial discrimination by public authorities is prohibited throughout the 

United States, and the principle of non-discrimination is central to government policy throughout the country.’’ The US delegation also told the Committee during its 

consideration of the US report in August 2001 that the Bush administration was 

committed to eliminating the practice of racial profiling.20

Amnesty International believes it is essential that the US Government remains 

as fully committed to upholding these principles of non-discrimination in the present 

challenging climate. Amnesty International urges that all precautions are taken to 

ensure that people are not arrested or detained or otherwise treated unfairly on 

grounds of their ethnic origin, race or religion. Such practices would violate standards under both international and US law.21

Amnesty International believes it is necessary to ensure that the strongest safeguards against discrimination prevail in implementing the Patriot Act. As the legislation gives the government extraordinary detention powers which apply only to 

non-nationals, it is particularly important to ensure that immigrant communities 

are not unfairly targeted. 

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22The rule ‘‘requires that privileged information not be retained by the government monitors 

and that, apart from disclosures necessary to thwart an imminent act of violence or terrorism, 

any disclosures to investigators or prosecutors must be approved by a federal judge’’. 23Principle 18(4) of the Body of Principles states: ‘‘Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law 

enforcement official’’. Principle 8 of the Basic Principles on the Role of Lawyers states: ‘‘All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and 

facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within the sight, but 

not within the hearing, of law enforcement officials.’’ 24Prisoners placed under such measures include Philip Berrigan, a 77-year-old peace activist 

serving a one-year and oneday prison sentence for damaging a military aircraft—he was reportedly taken from the prison’s general population, denied visits and phone calls from his wife and 

placed in ‘‘incommunicado’’ segregation for 10 days; Antonio Comacho Negron, a Puerto Rican 

independence activist serving time for bank robbery, who was held incommunicado in a SHU 

unit for 21 days; Marilyn Buck, serving a 70-year sentence for crimes connected to the Black 

Liberation Army, who was taken from the general prison population and placed in segregation 

Continued

Amnesty International is also concerned that the special military commissions allowed for under the Presidential Order of 13 November would also be discriminatory, in that they would apply only to non-US citizens who would be tried by a lesser standard of justice than US nationals. Amnesty International has called for this 

order to be revoked (see 11 below). 

7. NEW RULE PERMITTING MONITORING OF INMATE CONVERSATIONS WITH LAWYERS

Amnesty International is deeply disturbed by a new interim rule introduced by 

the Department of Justice on 31 October 2001, which permits the Bureau of Prisons 

to monitor previously confidential written or verbal communications between attorneys and their imprisoned clients whenever the Attorney General certifies that ‘‘rea- sonable suspicion exists to believe’’ that an inmate may use such communication ‘‘to 

further or facilitate acts of terrorism’’. This rule applies to all federal prisoners, and 

to people ‘‘held as witnesses, detainees or otherwise’’ by INS agents or other federal 

authorities. 

Although the Department of Justice has stated that procedural safeguards will 

protect the right to attorney-client confidentiality regarding legal advice,22 this rule 

erodes a fundamental principle under international standards, which requires governments to ensure that all arrested, detained or imprisoned people have a right 

to communicate with an attorney in full confidentiality.23 Amnesty International is 

concerned that such discretionary power concentrated in the hands of a few law enforcement officials, with no judicial oversight, is inherently open to abuse. Confidentiality is an essential component of the right to effective representation by counsel. 

Such monitoring, particularly in the case of witnesses, unconvicted and pre-trial detainees, could severely compromise the right of accused or detained persons to have 

adequate facilities to prepare a defence, as required under Article 14 of the ICCPR 

(which sets out fair trial guarantees). It also undermines the presumption of innocence guaranteed under Article 14. Prisoners may feel inhibited in discussing not 

only matters relating to their case but also in reporting any abuses they may be 

suffering, through fear of retaliation. Confidential mechanisms for communicating 

with the outside, particularly attorneys, are an important safeguard against abuse. 

Amnesty International considers that there are already appropriate remedies 

under existing federal law in cases where it is suspected that attorney-client communications may be used to further criminal activities. These remedies include 

court-ordered monitoring of communications where necessary, and other measures 

which are subject to appropriate judicial review. Amnesty International believes 

that the new rule should be repealed or at the very least a court order should be 

required in each case before any monitoring takes place. 

8. FEDERAL POLITICAL PRISONERS HELD INCOMMUNICADO FOLLOWING 11 SEPTEMBER: NEW RULE EXTENDING AUTHORITY TO DETAIN PRISONERS IN SEGREGATION

Amnesty International is concerned by reports that more than a dozen federal 

prisoners serving sentences in federal prisons for various politically motivated 

offences unconnected with the 11 September attacks were removed from the general 

prison population on or shortly after 11 September and placed in solitary confinement in high security units. Some were denied phone calls with attorneys while in 

segregation; several were also denied all visits and mail and were effectively held 

incommunicado for between 10 days and two weeks. None was informed of the reasons for their removal to the high security units or for the suspension of visits and 

phone calls.24

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part of which was ‘‘incommunicado′′; Sundiata Acoli, in prison since 1973, placed in a SHU unit 

on 11 September where he remained for at least six weeks and was denied access to his attorney. 25The directive was published on 31 October 2001 as an ‘‘Interim rule with request for comments’’ to be implemented immediately. 26The Convention against Torture states: ‘‘No exceptional circumstances whatsoever, whether 

a state of war or a threat of war, internal political instability or any other public emergency, 

may be invoked as a justification of torture’’ (article 2 (2). The ICCPR similarly states that no 

derogation is permissible from Article 7, which prohibits torture or other cruel, inhuman or degrading treatment or punishment. 27The international body which monitors ratifying states’ compliance with their obligations 

under the Convention against Torture. 28 US Department of State Initial Report of the United States of America to the UN Committee against Torture, submitted to the Committee on October 15, 1999. The report also states: 

‘‘While the constitutional and statutory law of the individual states in some cases offers more 

extensive or more specific protections, the protections of the right to life and liberty, personal 

freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the 

United States Constitution provide a nationwide standard of treatment beneath which no governmental entity may fall. The constitutional nature of this protection means that it applies to 

the actions of officials throughout the United States at all levels of government; all individuals 

enjoy protection under the Constitution, regardless of nationality or citizenship.’’ (AI emphasis) 

Since then the Bureau of Prisons has issued an administrative directive allowing 

the Director to extend the time in which prisoners may be placed under ‘‘special administrative measures’’ (including segregation in high security units) on security 

grounds for renewable one-year periods.25 Amnesty International is concerned that 

this may mean people being placed in solitary confinement for lengthy periods—

even indefinitely—without adequate safeguards or review. Bearing in mind that 

long-term isolation can amount to cruel, inhuman or degrading treatment, Amnesty 

International is seeking more information from the Bureau of Prisons regarding this 

procedure including the precise grounds on which such measures may be invoked; 

what safeguards exist to ensure due process rights; and the conditions under which 

such prisoners will be held. 

9. INTERROGATION TECHNIQUES- THE SPECTRE OF TORTURE IS RAISED

Amnesty International is deeply concerned by media reports suggesting that US 

security forces may be considering using ‘‘pressure techniques’’ including the ‘‘truth 

serum’’ Sodium Pentothal in order to elicit information from detainees during interrogation. Such methods would violate human rights treaties to which the US is a 

party and would severely undermine the USA’s standing in the international community. 

The USA has ratified the ICCPR and the Convention against Torture which prohibit torture or other cruel, inhuman or degrading treatment in all circumstances, 

including times of national emergency.26 In its report to the Committee against Torture 27 in October 1999, the US Government stressed that, although torture was not 

a distinct federal crime within US territory, existing federal and state laws already 

outlawed all acts falling within the definition of torture. The US made clear that: 

Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every 

act constituting torture under the Convention constitutes a criminal offense 

under the law of the United States. No official of the government, federal, 

state or local, civilian or military, is authorized to commit or to instruct 

anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise 

prohibited acts of torture or other cruel, inhuman or degrading treatment 

or punishment to be employed on grounds of exigent circumstances (for example, during a ‘‘state of public emergency’) or on orders from a superior 

officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.28

Any withdrawal from such a clear affirmation of US policy in this area would 

send a grave signal to the international community about the USA’s commitment 

to the respect and promotion of human rights. Any acceptance of torture in the 

United States risks eroding respect for the rule of law elsewhere. Furthermore, were 

the US Government to sanction even ‘‘moderate physical pressure’’ on even a few 

detainees, it would almost inevitably lead to an expanded use, as Amnesty International has found in more than 40 years of documenting the use of torture. 

The UN Committee against Torture has stated that the application of so called 

‘‘moderate physical pressure’’ as an authorized mode of interrogation clearly 

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29 UN Doc. CAT/C/SR.297, reporting on Israel’s compliance with the Convention against Torture—the committee recommended that interrogations by Israeli security officers applying these 

methods ‘‘cease immediately’’. 30 Use of drugs has been documented as a form of torture in a number of countries, including 

Chile and the former Soviet Union. Principle 6 of the Body of Principles states that ‘‘The term ‘cruel, inhuman or degrading treatment’ should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental...’’ Such use would also violate 

standards prohibiting compelled confessions. 31 It has also been noted that under US case law confessions male under the influence of truth 

serums arc also not ‘‘voluntary’’ and are consequently inadmissible as evidence: see Human 

Rights Watch ‘‘The Legal Prohibition Against Torture’, November 2001. 32 Human Rights Committee General Comment 20, para 12. 33 Human Rights Committee General Comment 13, para 14. 

breaches the Convention against Torture. It has ruled that even if a suspect is believed to have information about imminent attacks against the state, the following 

methods of interrogation may not be used as they violate the prohibition on torture 

and illtreatment: restraining in very painful conditions; hooding; playing of loud 

music; prolonged sleep deprivation; threats, including death threats; violent shaking; and using cold air to chill the detainee.29

Amnesty International opposes the use of Sodium Pentothal and other so-called ‘‘truth serum’’ drugs to interrogate suspects on the ground that this constitutes 

cruel, inhuman and degrading treatment and should therefore be prohibited as a 

method of eliciting information.30 Such use would also constitute physical and psychological pressure outlawed under international standards on interrogations. Principle 21 of the Body of Principles states: ‘‘No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity or decision or his judgement.’’ The InterAmerican Convention to 

Prevent and Punish Torture expressly defines torture as including ‘‘the use of methods upon a person intended to obliterate the personality of the victim or to diminish 

his physical or mental capacities, even if they do not cause physical pain or mental 

anguish.’’ 31 ‘‘The use of such drugs in this context also constitutes a breach of medical ethics, in so far as medicine and medical expertise should never be used for any 

purpose other than evaluating, protecting, or improving the physical and mental 

health of prisoners and detainees. 

Article 15 of the Convention against Torture obliges the state parties to ‘‘ensure that any statement which is established to have been made as the result of torture 

shall not be invoked as evidence in any proceedings, except against a person accused 

of torture as evidence that the statement was made.’’ Other international standards 

exclude not only statements extracted under torture, but also those elicited as a result of other cruel, inhuman or degrading treatment or punishment. 

The Human Rights Committee has expanded the prohibition on the use of evidence obtained under duress, by stating that ‘‘the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.’’ 32 The Committee has further stated that: ‘‘[t]he 

law should require that evidence provided by . . .any. . .form of compulsion is 

wholly unacceptable.’’ 33

The USA has taken some important steps to meet its obligations under the Convention against Torture. It has enacted legislation affirming US policy not to return 

any person to a country where there are substantial grounds for believing the person would be in danger of being subjected to torture, as required under Article 3 

of the Convention. In 1994 it enacted a federal law extending US jurisdiction over 

any act of torture committed outside the USA by a US national or an alleged offender present in the USA regardless of nationality. It has also enacted the Torture 

Victims Protection Act, allowing both foreign nationals and US citizens to claim 

damages against any individual who engages in torture or extrajudicial killing 

under ‘‘actual or apparent authority or under color of law of any foreign nation’’. Amnesty International calls on the Attorney General to make public assurances 

that no techniques involving torture or other cruel, inhuman or degrading treatment, will be invoked or introduced during interrogation of suspects. The US Government should make it clear that abuses including torture, cruel, inhuman or degrading treatment and other improper methods by any branch of US law enforcement will not be tolerated under any circumstances and will be prosecuted as a 

crime. 

10. SUSPECTS ARRESTED IN OTHER COUNTRIES

Amnesty International believes that, when required, all states are obliged to cooperate in the detection, arrest, and prosecution of persons implicated in crimes, regardless of the nationality of the perpetrators or the victims. Such cooperation 

398

34See No return to execution: The US death penalty as a barrier to extradition (Amnesty 

International Index: AMR 51/171/2001, November 2001). 

should, however, pay scrupulous respect to international human rights standards relating to arrest, detention, treatment, and trial. In this respect, Amnesty International urges the US Govemment to promote these standards at all times, particularly when its own agents are involved outside US territory. 

The Washington Post reported on 22 November that ‘‘at the urging of the CIA, 

foreign intelligence services and police agencies in 50 countries have arrested and 

detained about 360 suspects with alleged connections to Osama bin Laden’s al 

Qaeda network or other violent terrorist groups’’ since the 11 September attacks. 

Just as the US Government may not send detainees to another country to be interrogated if there are substantial grounds for believing that the person would be 

at risk of torture or other cruel, inhuman or degrading treatment or punishment, 

it has an obligation also to oppose the use of such treatment against any of the detainees arrested at its behest in other countries. For example, the FBI and CIA are 

reported to have been given access to, and to the interrogation sessions of, ‘‘Abu 

Ahmed’’, an alleged senior member of al Qaeda arrested by the authorities in Saudi 

Arabia, a country where torture and ill-treatment continues to be reported. If US 

agents become aware of any use of such treatment against detainees to whom they 

have access, they must publicly denounce it. 

The USA may seek to obtain the extradition to the United States of detainees 

held abroad. In such cases, it should respect foreign laws and the provisions of relevant extradition treaties, in particular in cases where the extradition of suspects 

is barred in the absence of guarantees that the death penalty will not be sought 

by the retentionist country, in this case the United States. Amnesty International 

is concerned by the USA’s past record and official sanctioning of the forcible abduction, or other ‘‘irregular rendition’’ of criminal suspects from abroad.34

In this regard, Amnesty International has asked the Department of Justice for information on the current legal status and whereabouts of Jamil Qaseem Saeed Mohammed. Mohammed, a Yemeni national reportedly wanted in connection with the 

bombing of the US destroyer, the USS Cole, in Yemen in October 2000 is reported 

to have been handed over in secret to US agents at Karachi International Airport 

in Pakistan on 26 October 2001 and flown to an unknown destination. In telephone 

calls to the Department of Justice, Amnesty International has been unable to establish the accuracy of the reports or the whereabouts of Jamil Mohammed, and repeats its request for information in this memorandum if indeed he was or is in US 

custody. 

11. PROPOSED TRIALS BY SPECIAL MILITARY COMMISSIONS

Amnesty International is deeply concerned by the Military Order signed by President George Bush on 13 November allowing for the trial by special military commissions of non-US citizens suspected of involvement in ‘‘international terrorism’’. It 

has called for the order to be revoked on the grounds that its proposals flout international fair trial standards. 

The Military Order expressly bypasses established principles of law and evidence 

applied in the trials of people charged with criminal offences in US Courts and circumvents the fair trial protections provided for in US military courts under the 

USA’s Uniform Code of Military Justice. Under the Military Order, conviction and 

sentence will be determined by a two-thirds majority of the members of the special 

military commission present at the time of the vote. Their decisions cannot be appealed to a higher court, and individuals cannot seek redress in any court anywhere 

in the world for any human rights violations that may occur during arrest, detention, or prosecution. In bypassing international fair trial standards, the Military 

Order contravenes US obligations under international law, specifically the International Covenant on Civil and Political Rights, ratified by the USA in 1992. Certain fundamental principles must be respected at all times, even in time of emergency, including the right of appeal. 

Although the Military Order places the proposed military commissions under the 

jurisdiction of the Department of Defense, individuals currently under the jurisdiction of the Department of Justice fall within the scope of the Order. Amnesty International urges the Department of Justice to oppose the transfer of any suspect 

under its jurisdiction to the jurisdiction of the above military commissions. It has 

been reported that some officials in the US administration have raised the possibility of Zacarias Moussaoui, a French national of Moroccan origin arrested in Minneapolis on 17 August, being tried before the military tribunals. Amnesty International opposes his or any other trial before the proposed military commissions. 

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A summary of Amnesty International’s Recommendations 

Amnesty International urges that the US Attorney General and the Department 

of Justice to:

• Make public information on the total number of people arrested to date 

in connection with the 11 September investigations; dates and place of arrest; the number still detained and the reasons for the detention; length of 

time in detention; place of detention; and data on the race or ethnicity of 

those detained. Provide such information regularly on future arrests. 

• Ensure that no-one is held incommunicado in custody. • Publicly reaffirm the US Government’s unequivocal opposition to the use 

of torture. 

• Ensure that no person in federal custody, including those held in local or 

country jails, is subjected to torture or other cruel, inhuman or degrading 

treatment, and that law enforcement officials will not use methods of interrogation that constitute torture or other treatment prohibited under international standards. 

• Ensure that all cases of alleged ill-treatment are thoroughly and impartially investigated, with the results made public. Those responsible for 

abuses, including discriminatory treatment, should be brought to justice. 

• Ensure that everyone arrested or detained is provided with their rights 

under international standards, as set out under Article 9 of the ICCPR and 

the Body of Principles, including being informed of the reasons for arrest 

and given prompt access to attorneys and relatives and consular officials or 

representatives of other organizations as requested. 

• Closely monitor the detention provisions of The Patriot Act, and ensure 

that arrested or detained persons are brought promptly before a judge and 

be able to challenge the lawfulness of their detention. 

• No-one should be detained on national security grounds unless charged 

with a recognizable criminal offence and tried without undue delay or action is being taken to deport within a reasonable period. There must be a 

realistic possibility of deportation being effected. No-one should be deported 

or returned to a country where they may face torture. 

• Ensure that no-one is detained on the basis of evidence they are unable 

to review or challenge. 

• Ensure that INS standards for the treatment of immigration detainees 

and asylum seekers, introduced into some facilities earlier this year, are extended to all facilities housing such detainees. The standards should be 

strictly monitored and adhered to. 

• Ensure that asylum seekers are generally not detained. If they are detained on security grounds they must be allowed a full and fair hearing of 

their claim as provided under the 1951 Refugee Convention. 

• Ensure that no-one is arrested, detained, or subjected to or subjected to 

unfair or harsh treatment, on the grounds of their ethnic origin, race, nationality or religion. 

• Promote and protect international human rights standards in the context 

of international investigative measures in the wake of 11 September, and 

in particular to ensure that any US agents with access to detainees in other 

countries denounce any human rights violations committed during the investigations. 

• Not resort to the circumvention of extradition protections in the case of 

any individual whose custody the USA seeks. 

• Oppose the transfer of any individual from Department of Justice jurisdiction to the jurisdiction of the special military commissions proposed by 

Statement of William F. Schulz, Executive Director, Amnesty International 

recent executive order. Support revocation of the order.

USA, Washington, D.C. 

f In a November 27th press conference, Attorney General John Ashcroft challenged 

those who had expressed concern about the treatment of individuals detained since 

September 11 to provide specific information to substantiate allegations of civil and 

human rights abuses. 

As the Attorney General was making this assertion, Amnesty International USA 

representatives were submitting a 26-page memorandum to him (attached) that provides such information. Since then, Amnesty International has continued to invesVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00035 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
400

tigate and report on specific cases. Today, we release our most recent findings (also 

attached). Together, these documents detail how U.S. and local law enforcement officials have denied some detainees access to counsel; prevented them from seeing relatives; denied them medicine and food; held them in handcuffs and shackles for prolonged periods of time; and subjected them to beatings and other mistreatment. 

As a nation that takes great pride in its stand for human rights and personal freedom, the United States has a responsibility to demonstrate to the world that its administration of justice can be both evenhanded and transparent. We should not fear 

the rule of law. We should not fear longstanding mechanisms that are designed to 

help us distinguish between the innocent and the guilty. We should not fear a court 

system designed to ensure due process and prevent cruel and inhumane treatment. 

We should not fear our Constitutional protections or our international human rights 

obligations. 

On several occasions, President Bush has spoken forcefully against making judgments about individuals based on their race, religion, or appearance. Unfortunately, 

his Administration’s current approach to justice risks creating a contradiction between his words and his actions. Transparency, not secrecy, represents the best 

mechanism by which we can demonstrate to the world that the values we seek to 

defend are also the values we practice. Anything less will only sustain the contention of those who would believe that American justice is neither fair nor obtainable. 

Amnesty International is a worldwide grassroots movement that promotes and defends human rights. For additional information contact Alexandra Arriaga, Director 

of Government Relations, at 544-0200, ext. 235.

Statement of Amnesty International 

fSEPTEMBER 11 DETAINEES

Amnesty International has documented numerous cases in which those individuals detained in the aftermath of September 11 have been denied human rights. 

The following represent a sample of the most recent findings. The information on 

these and other cases is obtained through contact with lawyers and relatives, as 

well as through direct contacts with some detainees. 

Hasnain Javed, a Pakistani student held for three days in September for overstaying his visa was allegedly beaten and had a tooth chipped by inmates who 

called him a ‘‘terrorist’’ while he was detained in jail in Wiggins, Mississippi. He 

reports that he tried to call for assistance through an intercom but guards failed 

to respond. Later that night he was allegedly stripped naked and again beaten by 

inmates; again guards failed to respond to his cries for help. 

Mohammed Maddy, an Egyptian arrested on October 3, alleges that guards in the 

Metropolitan Detention Center (MDC) in New York City assaulted him. A magistrate ordered photographs to be taken of bruising to his arm, which he said was 

caused by the guards’ ill-treatment of him. Federal authorities are investigating this 

case. 

Osama Awadallah, a 21-year-old Jordanian student who was attending college 

near San Diego was arrested on September 21 as a material witness in the investigation regarding the September 11 attacks. He was moved to MDC in New York 

City where he alleges that guards insulted his faith, kept him from sleeping and 

‘‘roughed him up.’’ A court filing asserts that when Mr. Awadallah arrived in the 

Metropolitan Correctional Center on October 1, a guard shoved him against a wall 

while he was handcuffed, kicked his leg shackles and pulled him by the hair to 

make him face an American flag. The next day, the filing says, federal marshals, 

while escorting Mr. Awadallah to a court hearing, pinched his arms while his hands 

were cuffed behind his back and kicked his feet in an elevator. The court papers 

also say that the incident left black-and-blue marks on his arms and his left foot 

bleeding, and that two of Mr. Awadallah’s lawyers observed a bruise on his arm 

when they met with him on October 4. 

Ghassan Dahduli, a Palestinian-Jordanian was detained on September 22 in a 

Texas jail for a visa violation. He was held for two months in solitary confinement 

with only one hour of exercise a week in a small, enclosed yard. He was shackled 

during non-contact visits with his family; denied personal property and, unlike other 

inmates, denied access to TV. On November 28, he was deported to Jordan. He had 

agreed to Voluntary Departure to Jordan, as he was afraid he would be held indefinitely in jail in the USA, and was unable to support his family. Fearing for their 

future, his Jordanian wife and five children under 16 (all of whom are US citizens) 

401

left the USA for Jordan three weeks ago (before Dahduli’s deportation). Two INS 

agents including the investigator in the Dahduli case, accompanied to him to Jordan. His wife believes he was handed over to Jordanian security forced on arrival 

in Jordan—she was waiting for him at the airport but he did not appear. His whereabouts are unknown at this time. His US attorney believes that the INS investigator may have accompanied him to take part in an interrogation or that he may 

have been handed over to the Jordanian security forces for more ‘‘pressurized’’ interrogation. It is unclear if any assurances were sought to prevent his treatment, or 

whether the US has played a role in handing him over to security forces. Amnesty 

International sent a fax to the INS Dallas District Director seeking more information on what happened to him on arrival in Jordan, and clarification of role of the 

INS. There has been no response from INS as yet. 

A Saudi Arabian man detained on an immigration violation in Denton County 

Jail, Texas, initially spent a week without a mattress, bedding, blanket or clock 

(necessary to recite his Muslim prayers); his conditions improved only after an appeal by his attorney to the regional INS director. He was allowed to see his wife 

eight days after his arrest and was made to wear leg-irons during the second noncontact visit; he is still allowed far fewer visits than other inmates have with relatives. He has reportedly asked to remain in solitary confinement through fear for 

his safety if held with other inmates. Although he has been given a final deportation, the INS is still holding him. 

Detainees awaiting deportation in Mecklenburg County Jail, North Carolina, allege that guards forced them to strip naked and blasted them with cold air in early 

November. The wife of one man reported that only inmates of Middle Eastern descent were subjected to this treatment and that when her husband tried to complain 

of abuse during telephone calls, guards terminated the calls. 

Five Israelis arrested on September 11 in New York were held incommunicado for 

about a week. Police allegedly subjected them to prolonged interrogations in which 

the detainees were kept blindfolded and in only their underwear. 

An elderly Maltese couple arriving in the US in September for a vacation with 

their daughter (a US resident) was refused entry at Philadelphia airport, questioned 

extensively by INS officers and held overnight in a detention center where they 

were allegedly denied all food and water, despite the woman being a diabetic: The 

husband (a 63-year old dermatologist with no criminal record) was kept in heavy 

wrist and foot chains until both were put on a plane home the next day. 

Four South Asian men Mohamed Khan (Pakistan), Najmul Hassan (Pakistan), 

Irfan Ahmed (Pakistan) and Ayazuddin Sheerazi (Indian national) were detained in 

Connecticut on November 24, and have not had access to their families since their 

arrest. When their attorney tried to visit them, officials would not confirm they were 

detained and their names did not appear on Immigration and Naturalization Service 

(INS) computerized lists. The attorney eventually gained access only after obtaining 

their alien numbers through another source. Two of the four have asylum claims 

pending. 

Mazen Al-Najjar, a Muslim cleric, was arrested in November on a deportation 

order for overstaying his student visa. Despite having no criminal record, he is 

locked down for 23 hours a day in a small cell in solitary confinement in a maximum security prison -with a ban of all visits for his family for 30 days. Dr. AlNajjar was previously detained in a US jail for more than three years on the basis 

of secret evidence, while appealing against the deportation order, but a federal judge 

ordered his release last December, after finding there were ‘‘no bona fide reasons 

to conclude that [he] is a threat to national security.’’ Dr.Al Najjar is being held 

under powers conferred on the Attorney General under the Patriot Act to detain 

someone on mere suspicion of terrorist associations—even though this is the same 

evidence that a court ruled insufficient to justify detention last December. He his 

currently held in far worse conditions than before—with no prospect of release because, as a stateless Palestinian, he has no country to return to, he could remain 

behind bars indefinitely. 

A Yemeni student arrested on a visa violation after several years in the US has 

reportedly agreed to be deported to Yemen—despite fearing he would be at risk 

there—after spending 45 days in solitary confinement in a high security unit. 

NAACP poised to join ACLU in rights fight

f402

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

Detroit, Michigan 

NAACP POISED TO JOIN ACLU IN RIGHTS FIGHT

CHAIRMAN: ASHCROFT THREATENS LIBERTIES

The NAACP will stand side-by-side with the ACLU in opposing any threat to civil 

liberties posed by the U.S. Justice Department’s response to terrorism, NAACP 

Chairman Julian Bond said Sunday in Bloomfield Township. 

Bond was the keynote speaker at the American Civil Liberties Union Fund of 

Michigan’s annual dinner, at Temple Beth El. 

‘‘The NAACP and the ACLU were created to fight for freedom and justice in a 

nation dedicated to those goals,’’ Bond said. ‘‘We will continue this fight now with 

renewed determination. Each of us has a role to play as guardians of our nation’s 

liberty.’’

Bond said the National Association for the Advancement of Colored People has 

been wary of U.S. Attorney General John Ashcroft because he stands against everything the NAACP has supported. 

‘‘He knows something about the Taliban, coming from as he does from that wing 

of American politics,’’ Bond said. ‘‘Even before Sept. 11, he had moved the department to the far right, making it headquarters for the Federalist Society.’’

The society shares Ashcroft’s hostility to civil and reproductive rights, religious 

liberty, environmental protection and privacy rights, Bond said. 

Since the attacks on Sept. 11, Ashcroft has waged a relentless assault on civil liberties, Bond said. 

In the past month, he has allowed the FBI to eavesdrop on privileged lawyer-client communications, ordered the interviews of thousands of young men of Middle 

Eastern heritage, and ‘‘advocated a Star Chamber system of secret military trials,’’

Bond said. 

This month, he’s suggested a return to FBI tactics of illegal wiretaps and burglaries, Bond said. 

‘‘He has yet to learn that the protections of our Constitution are not a reward for 

good behavior,’’ he said. 

Anti-terrorism efforts are under scrutiny by the NAACP and by the ACLU—at the 

federal and state level. 

Kary Moss, executive director of the Michigan chapter of the ACLU, said her organization is concerned about a proposed Michigan AntiTerrorism Act. She said the 

ACLU wants to make sure it doesn’t infringe on civil liberties. 

Before his dinner speech, Bond spoke about the threat to civil liberties. He cited 

the planned military trials and the roundup and detention of people ‘‘on God knows 

what charge.’’

‘‘The assumption is that the president knows what’s best for us,’’ Bond said. ‘‘I 

don’t believe he knows what’s best for us.

f’’

Statement of Claudette Shwiry Hamad, Editor, Arab American Institute 

Foundation Report 

APPENDIX

HATE-BASED INCIDENTS SEPTEMBER 11—OCTOBER 10, 2001

This report is a compilation of hate-based incidents that have occurred in the 

United States over the one-month period following the September 11 attacks on the 

World Trade Center Towers and the Pentagon. 

The events described were compiled from print, broadcast and established Internet media sources and individual testimony. Although this report includes 326 incidents in 38 states, there undoubtedly have occurred many other episodes of discriminatory actions that have either not been reported for fear of further backlash, 

or not considered sufficiently newsworthy. 

The Arab American Institute Foundation is grateful for the research efforts its 

staff, especially webmaster Melyssa Morey, consultant Patsy Thomasson, and the 

403

American Arab Anti-Discrimination Committee (ADC) reports which are cited with 

source origination. 

ARIZONA

Assaults 

Phoenix. On Sept. 15th, Frank Silva Roque shot to death Balbir Singh Sodhi. 

Roque allegedly killed Sodhi as part of a multiple-incident shooting rampage that 

included shootings at a Lebanese-American clerk who escaped injury, at another gas 

station in Mesa, and at the home of an Afghan family. (Arizona Republic, 9/18) 

Mesa. 49-Year-old Indian Sikh shot while standing outside his Chevron station. 

Family believes he had been killed because he looked ‘Middle Eastern’’. Attack apparently part of multiple incident-shooting rampages. Gunman also shot at 

LebaneseAmerican clerk who escaped injury and fired upon home of Afghan family. 

(ADC, 9/15) 

Threats 

Phoenix. Anonymous callers told police they planned to attack Middle Eastern 

businesses. (Arizona Republic, 9/12) 

Tempe. Bomb threat phoned into Islamic Cultural Center. (Arizona Republic, 9/

12) 

Discrimination 

Phoenix. Three Arab men were refused readmission to their Sept. 25th United 

Airlines flight to Chicago after a female passenger allegedly raised her concern 

about them. (First plane evacuated allegedly for mechanical problems.) The three 

have filed a lawsuit. (Chicago Tribune, 10/4) 

Phoenix. Arab American pilot pulled off line and told he cannot fly. Coworker allegedly reported pilot sympathetic to Palestinian cause. After background check, put 

back on and able to fly, but pilot concerned he may be terminated. (ADC, 9/

19)I11Scottsdale. Bar briefly posted sign: ‘‘Arabs not welcome.’’ Co-manager later removed it and admitted, ‘‘it was a stupid think to do.’’ (Arizona Republic, 9/14) 

CALIFORNIA

Assaults 

Los Angeles. Palestinian-born salesman killed while making door-to-door rounds. 

Family called killing hate crime, but police say robbery was likely motive. (Agence 

France Presse, 10/9) 

Los Angeles. On an evening walk close to his home, Sikh man wearing Pakistani 

dress attacked by four men who beat and punched him. Norwalk police filed report 

as robbery because attackers ripped his clothes and pulled his wallet. However, the 

Sikh claimed the attackers yelled, ‘‘terrorist’’ as they beat him. (ADC, 10/9) 

San Diego. Two men on motorcycle pulled up next to Sikh woman stopped at red 

light, yanked open her door shouting, ‘‘This is what you get for what you’ve done 

to us!’’ Then, ‘‘I’m going to slash your throat!’’ The woman raised her elbows to protect her neck and hunched over. She was slashed in the head at least twice before 

the men, hearing a car approach, sped off. (San Diego Union-Tribune, 10/5) 

Reedley. Abdo Ali Ahmed, Yemeni grocer shot to death in his shop over the weekend. Family members said the day before he was killed, death threat that included 

anti-Arab statements was found on windshield of Ahmed’s car. It is being investigated as a hate crime. (Washington Post, 10/3) 

Fresno. Arab American, Rien Said Ahmed, was shot and killed while at work. Witnesses saw four males speed from the store in white sedan. No money or merchandise was stolen. Ahmed had received threats since mid-September. (The Fresno Bee, 

10/2) 

Los Angeles. Thinking he was Iranian, two men bumped a Mexican immigrant’s 

car, followed him to his home, broke in and beat him in front of his wife and daughter, shouting insults against Arabs. (Agence France Presse, 10/2) 

Los Angeles. Driver got into argument with Iranian driver while on road. He allegedly yelled racial threats and waved gun at both Iranian driver and passenger, 

also Iranian. Driver charged with making criminal threat, violating civil rights and 

exhibiting firearm. (The Bulletin’s Frontrunner, 10/1) 

Industry. Two Arab customers in bar beaten by four bouncers. One of the customers had been arguing with bartender over bill. Bouncers attacked him, breaking 

his nose and arm, while calling him a terrorist. Victim’s cousin put his hands up, 

indicating he did not want trouble, asked ‘‘Are you gonna beat me?’’ The bouncers 

turned on him, breaking his ribs and bruising his eye. (ADC, 9/30) 

404

San Fernandes. A 26-year old Indian, said he was walking with a white Australian friend early the morning of Sept. 15th, when they were approached by a man 

who called him a ‘‘dirty Arab,’’ and punched him and the friend. His friend was 

stabbed in the ensuing brawl and remains hospitalized in critical condition. (NY 

Times, 9/19) 

Police investigating death of Sikh man as possible hate crime. His body was found 

floating in nearby canal two days after family reported him missing. (The Hotline, 

9/19) 

San Gabriel. Egyptian-American grocery storeowner shot to death in what authorities said was robbery, but family called hate crime. Owner shot after confrontation with two customers, who sped off in Honda driven by a third man. Money in 

cash register not taken. (Arizona Republic, 9/18; ADC, 9/15) 

San Mateo. Three-year old Sikh child hit in the head by gasoline bomb thrown 

through window of her home. The bomb did not explode. (San Francisco Chronicle, 

9/18) 

San Gabriel. While grocery shopping, woman dressed in Muslim clothing attacked 

by another woman who beat her while yelling, ‘‘America is only for white people.’’ Victim taken to emergency room. (Los Angeles Commission on Human Relations, 9/

17) 

Beverly Hills. Noticing Koran charm worn around neck of Muslim bagel shop customer, another female customer attacked her, saying, ‘‘Look what you people have 

done to my people.’’ She lunged at the Muslim woman making derogatory comments 

but was restrained by two men. The victim called police; storeowner apologized to 

attacker and offered help. (www.hatewatch.org, 9/17) 

Palmdale. Shots were fired into convenience store. (www.hatewatch.org, 9/17) 

San Bernardino. Sixty (60)-year old Arab American businessman, victim of police 

brutality after Popeye’s employee screamed as the businessman was leaving the restaurant, ‘‘He’s an Arab, he’s an Arab. Get him!’’ Her cries alerted police officer inside whom pursued the frightened customer in his squad car, allegedly yelling, ‘‘Get 

that f——Arab’’. When Arab American arrived home, he was followed by helicopter 

and squad cars that rammed his car. Officers shot at him point blank with rubber 

bullets; another officer broke his nose with his baton. Man was taken to hospital, 

then to jail, charged with abating the law and assault with deadly weapon (his car). 

Inmates are threatening man. (ADC, 9/14) 

San Francisco. Australian software engineer stabbed in chest by someone who allegedly thought engineer’s friend, Australian of Indian and Hispanic heritage, was 

Arab. Men said stabbing took place when they were passed by a group while crossing street. Scuffle started when engineer was punched or bumped by one of the men, 

who spewed racial epithets and said, ‘‘We don’t like Arabs’’, then wounded engineer. 

(San Francisco Chronicle, 9/14) 

Los Angeles. Young Persian woman exiting restaurant with friend followed by another woman, who asked if she is Arab before punching her in the eye. (Los Angeles 

Commission on Human Relations, 9/14) 

Los Angeles. Arab American woman threatened with gun. (Sacramento Bee, 9/14) 

Los Angeles. Syrian American convenience store owner shot at twice during week; 

two shots on 9/11 and four shots 9/13. (Los Angeles Times, 9/14) 

Los Angeles. Two Spanish-speaking women harassed and one beaten by woman 

in doctor’s office. Woman allegedly yelled, ‘‘You foreigners caused all this trouble’’

before attacking them. (Los Angeles Commission on Human Rights, 9/12) 

Fremont. Sikh student verbally harassed and physically assaulted at his school. 

(San Jose Mercury News, 9/12) 

San Francisco. Palestinian American teenager beaten. (San Francisco Chronicle, 

9/11) 

Vandalism 

Anaheim. Pakistani restaurant gutted in blaze called suspicious by city officials. 

(Orange County Register, 9/28) 

Los Angeles. Home of Pakistani family burned down after series of phone threats. 

(Family had moved to safer location before blaze. No injuries reported.) (ADC, 9/27) 

Los Angeles. Car of Iranian family, parked in their driveway, attacked by man 

with baseball bat and hammer. (Los Angeles Times, 9/22) 

Palo Alto. Tires of car belonging to Palestinian American slashed with knife or 

other sharp object. (ADC, 9/22) 

San Jose. Fire officials reported there had been 14 suspicious fires since Sept. 

11th. Two occurred 9/14 at homes of East Indian and Middle Eastern American families. (San Francisco Chronicle, 9/18) 

West Sacramento. Sikh temple barricaded with tractor, truck and trailer that were 

padlocked, after refusing angry caller’s order to lower its religious flag to half mast. 

405

Perpetrator charged with felony vandalism and trespassing after he jumped into the 

temple’s holy pool. (Los Angeles Weekly, 9/20) 

Napa. Sikh American fast food restaurant manager found his car vandalized. 

(Contra Costa Times, 9/19) 

San Jose. Afghan restaurant attacked with bottles and rocks. (San Jose Mercury 

News, 9/18) 

Encino. Afghan/Persian restaurant destroyed in fire 9/17. (Los Angeles Times, 9/

18) 

San Diego. A cherry bomb exploded on the sidewalk outside the Islamic Center 

9/16, forcing worshipers to evacuate the building during a prayer service. (Los Angeles Times, 9/18) 

San Diego. Mosque struck by paintballs 9/14 and by gunfire during morning prayers 9/15. (Boston Globe, 9/14?) 

Los Angeles. Pakistani Muslim returns to mall parking lot to find body of his car 

scratched in several places with ‘‘Nuke em’’. (www.hatewatch.org. 9/14) 

Woodland Hills. Two students scrawled word ‘‘die in Persian Club’s booth at 

Pierce College. (Sacramento Bee, 9/14) 

San Francisco. Bag of blood thrown at immigration office that serves Arabs. Anonymous caller told paralegal he left package ‘for your brother Osama bin Laden.’’ (Salon.com, 9/13) Perpetrator booked on suspicion of destroying property, interfering 

with another’s exercising civil rights and one act of terrorizing. Bail was set at $20,000; he was released 9/12 on own recognizance. (San Francisco Chronicle, 9/13) 

San Francisco. A bag filled with blood was hurled at the door of a law office building in the Mission District 9/12 by someone who apparently mistook the building 

for an Islamic Community Center. The name of Osama bin Laden was scrawled on 

the bag. (Philadelphia Inquirer, 9/13) 

Pacifica. Car with ‘‘Free Palestine’’ sticker vandalized. (San Francisco Chronicle, 

9/13) 

Yuba City. Hindu American awoke to find ‘‘USA’’ spray painted across hood of car 

and religious medallion that had hung from rearview mirror missing. (Sacramento 

Bee, 9/12) 

Anaheim. Three teenagers hurled skateboard through window of Arab American 

owned market. Police caught perpetrators and their parents apologized. (AP, 9/12) 

Threats 

Huntington Beach. Man arrested for making a death threat against Iranian couple 

in their 70s. (Los Angeles Times, 9/25) 

Palmdale. Five public high school students were sent home for their safety after 

note was found at school threatening World Trade Center attacks would be avenged 

9/18 with ‘‘massacre’’ with their names listed beneath. (AP, 9/20) 

Sign posted on freeway: ‘‘Kill All Arabs.’’ (www.hatewatch.org, 9/17) 

Moreno Valley. Man arrested on suspicion of making terrorist threats to radio station KHPY. Caller accused of leaving message on station’s answering machine, 

threatening to damage tower. Police believe threat connected to station’s Sunday 

morning program, ‘‘Islamic Perspective’’. (The Press Enterprise, 9/14) 

San Diego. Caller to Middle Eastern grocery store asked if the owner sold rat poison, ‘‘I wish you do so I can poison you.’’ (San Diego Union-Tribune, 9/14) 

Los Angeles. Sign found in Hall of Records elevator, ‘‘Kill all towel heads.’’ (Los 

Angeles Commission on Human Relations, 9/13) 

San Jose. Islamic group received calls threatening lives of all Muslims. Another 

caller said, ‘‘You ruined the country and you will all die!’’ (www.hatewatch.or?, 9/

11) 

Harassment 

University of So. California Muslim Public Affairs Council reported some students 

harassed on campus and some women have had their veils pulled off. (NBC–4 News, 

9/14) 

Discrimination/Profiling 

Los Angeles. Egyptian American business owner accused by deliverywoman of ‘terrorist threats’ (also sexual battery and imprisonment) on 10/2. Although police insisted he was not being arrested (and therefore not read Miranda rights), was not 

allowed to go to station on own volition, was handcuffed in front of pregnant wife, 

employees and customers; at station was photographed and fingerprinted and questioned. Passed voluntary polygraph test, released 10/4 on $50,000 bail. Week of 10/

14, computers and other equipment confiscated. On 10/22, judge granted prosecutors 

three-week continuance to find evidence of ‘terrorist threat.’ (AAI, 10/12, 10/24) 

Stockton. Jordanian man, single father of two, fired from job at L3 Celerity systems in Cupertino. Said although week before attacks, weekly evaluation was posiVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00041 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
406

tive, ‘as usual’ day after boss gave him negative review and forced him to report 

whereabouts every half hour. Jordanian lost job a week later in series of layoffs, 

though company kept technicians with less seniority. Has received no response to 

many job applications he has submitted since then. Is considering legal action. 

(Newhouse News, 10/17) 

San Francisco. A teenage boy was denied entrance on a public bus due to his appearance. (San Francisco Chronicle, 9/25) 

Los Angeles. Six passengers of Indian ethnicity brought to back of plane on flight 

from LAX to Washington Dulles. The pilot first questioned the men; FBI and INS 

agents arrived an hour later and interrogated passengers. Three passengers left 

plane because they were uncomfortable. (ADC, 9/26) 

Fresno. Hairdresser stomps off; salon owner yells at Pakistani American client 

and orders him to leave immediately after he refused to answer hairdresser’s questions about bin Laden and recent events. FBI agents went to man’s home later that 

night and interrogated his wife. (ADC, 9/24) 

COLORADO

Vandalism 

Colorado Springs. ‘‘Terrorist on Board’’ spray painted during night on car belonging to Sikh American. ‘‘Terrorist’’ also painted on driveway. (AP, 9/18) 

Threats 

According to University of Colorado police, library pillars spray painted with 

‘‘Nuke sand nigger’’, Arabs go home’’ and ‘‘Bomb Afghanistan’’. (Colorado Daily via 

uwire, 9/19) 

Aurora. Muslim man heard eight shots fired outside of his home. Suspicious of 

stranger on sidewalk wearing a raincoat and ski mask seemingly keeping 

postmidnight vigil, he called police. (ADC, 9/15) 

Colorado Springs. Four men entered mosque, cursed at a worker, and threatened 

to burn down the building. (Philadelphia Inquirer, 9/13, AP Online) 

CONNECTICUT

Assaults 

Bridgeport. Brazilian waiter attacked on street by eight men who taunted and accused him being Arab. Waiter’s face badly bruised and arm broken. (Deutsche 

PresseAgentur, 9/13) 

Vandalism 

Bridgeport. Muslim arriving at mosque for afternoon prayer 9/17 found phone 

wires cut and threatening graffiti. (AP, 9/17) 

Threats 

Turban-wearing Sikh threatened by second-grade classmate, who said, ‘‘You better watch out - you’re going to get beat up.’’ She later explained to the principal, 

‘‘He looks just like the guys they said did it on TV.’’ (AP, 9/20) 

Bristol. Man threatened to blow up Arab American-run Subway restaurant. (AP, 

9/18) 

DISTRICT OF COLUMBIA

Assaults 

Two women wearing Muslim headdress spat at on subway near White House. 

(Plain Dealer, 9/14) 

Vandalism 

Rocks thrown against front door and windows of former mosque inhabited by 

Turkish family. Prior, guests leaving the home were approached by man asking 

questions about family. Before walking away, said his name was ‘‘Osama bin 

Laden.’’ (ADC, 10/3) 

Threats 

Number of threats received by Arab American Institute, including death threat 

to president, bomb threats and hate mail at office. 

Indian American stopped by car with four males who accused him of being terrorist and threatened, ‘‘we will bomb you.’’ (IACFPA, 9/18) 

Islamic Center received bomb threats; closed as result. (ADC, 9/13) Sikh American 

leaving work accosted by pedestrians yelling verbal expletives; threatening to ‘get’

him and bomb him in retaliation for 9/11 attacks. (IACFPA, 9/17) 

407

Discrimination/Profiling 

DC area. Department store employee subjected to hostile work environment. Alleges supervisor said government should restrict admission of Arabs and Muslims. 

‘better to prohibit them from living here because anyone of them can become a terrorist in waiting, even their children’. Supervisor is threatening to fire her (based 

on bad economy. Two other employees of Middle Eastern origin fired over past two 

weeks. (ADC, 9/28) 

FLORIDA

Assaults 

Punta Gorda. Gas station shot at by vandals. (ADC, 9/20) 

Brooksville. A Muslim woman in a car was almost run off road by another driver. 

(St. Petersburg Times, 9/16) 

Herando County. Mosque shot at and vandalized. (St. Petersburg Times, 9/14) 

Sunrise. Islamic school principal, driving home with his sister and three children 

chased by men in Jeep. Jeep driver reached behind seat, yelling ‘Where’s my gun? 

Let me take care of them.’’ Principal called 911; when Jeep driver saw cell phone, 

made abrupt uturn and sped off. (Sun Sentinel, 9/19) 

Vandalism 

Jacksonville. Fire that destroyed storage shed in rear of restaurant with Middle 

Eastern name being investigated as arson. (Florida Times-Union, 9/27) 

Port Charlotte. Roadside planter, shrubs and plastic sign burned at mosque (second vandalism that week). (ADC, 9/19) 

Temple Terrace. ‘‘Muslims F—-’’ found written on white door of family’s garage 9/

13. (St. Petersburg Times, 9/14) 

St. Petersburg. Palestinian American man’s brand new GMC truck found 9/12 

with threatening note and splattered with paint. (St. Petersburg Times, 9/14) 

Threats 

Deerfield Beach. Ku Klux Klan cards placed under windshield wiper of Egyptian man’s car. (Sun Sentinel, 9/19) 

Discrimination/Profiling 

Miami. Palestinian American student in care of legal guardian while father out 

of country was taken out of school by guardian concerned that father could not return, and was going to send him to relatives out of area. When father advised that 

he could come back, she tried to reenroll student, but assistant principal rejected 

admission. Boy finally enrolled; first day back, was badly beaten by classmate urged 

on by father. Student now in night school; feels his presence is too provocative. (AAI, 

10/5) 

Tampa. Manager of airport hotel service terminated. Although half the workforce 

was laid off for lack of business, he was the only manager to lose his job. (ADC, 

10/1) 

Fort Lauderdale. Scottish/Lithuanian wife of Egyptian American forced to disembark a Southwest Airlines flight while bags and documents were once again 

checked. Her checked bags were removed from plane and flight took off without her. 

Apparently, flags were raised because she had traveled to Florida with husband; he 

returned to California (although also pulled off American Airlines flight, airline handled situation discreetly and held plane while checking his ‘story’), she was to fly 

to Connecticut to visit family. (AAI, 10/8) 

Tampa. Egyptian American prevented from boarding United Airlines flight to 

Cairo. As he was entering plane, was called back to ticket counter and informed 

that pilot refused to allow him on flight. Ground crew was kind, put him on later 

flight to make connection to Cairo. (Pittsburgh Post-Gazette, 9/21; AAI 10/10) Florida (cont.) 

Orlando. Two Pakistani businessmen forced to disembark US Airways plane. 

Takeoff delayed 45 minutes until security officers and US Airways representatives 

arrived. They requested the men leave because the captain did not feel comfortable 

with them aboard. (ADC, 9/17) 

GEORGIA

Assaults 

Atlanta. Four men tried to stab a Sudanese man after telling him, ‘‘You killed our 

people in New York. We want to kill you tonight.’’ (Atlanta Journal Constitution, 

9/13) 

Gwinnett. Following illegal U-turn, Arab American motorist pulled over by police 

sergeant in patrol car. Motorist alleges sergeant approached car while holding gun; 

408

ordered motorist out, threatened him, called him ‘‘bin Laden supporter’’ then 

searched his car. (ADC, 10/4) 

Threats 

Atlanta. On Arab American woman’s answering machine: ‘‘We know where you 

are and we can get you.’’ (ADC, 9/14) 

Discrimination/Profiling 

Savannah. Authorities boarded AirTrans flight to Atlanta and took away passenger. Airport officials told Savannah Morning News passenger’s name similar to 

that of one on FBI watch list. After questioning, passenger was cleared and allowed 

to depart on later flight. (ADC, 9/18) 

ILLINOIS

Assaults 

Evanston. Chicago taxi driver and college student, Mustapha Zemkour (who was 

assumed to be of Arab descent) was injured Monday when two menincluding a Cook 

County corrections officer-chased him on motorcycles, then allegedly hit him in the 

face and yelled, ‘‘This is what you get, you mass murderer.’’ (Chicago Tribune, 9/

18) 

Orland Park. Motorist drove alongside Arab family of four, screamed obscenities 

about the Sept. 11th events and began swerving as if to hit the family’s vehicle. 

They were able to pull off to side road, but reluctant to report motorist’s license 

plate number in fear of further harassment. (ADC, 9/16) 

Chicago. Man attacked gas station attendant he thought was of Arab descent with 

blunt end of 2-foot machete. Attacker arrested and charged with hate crime. (Chicago Tribune, 9/13) 

Chicago. Firebomb tossed at Arab American community center. (AP, 9/13) 

Palos Hills. Two Muslim students beaten at Moraine Valley College. Two Arab 

boys assaulted attackers in defense of the girls. (NIAMC) 

Vandalism 

Chicago. Assyrian church set on fire; estimate $200,000 damage. Fire being investigated as arson. (Chicago Tribune, 9/24) 

Chicago. Reports of vandalism. (Chicago Tribune, 9/13) 

Chicago. Arab American living above his place of business awakened by smoke 

coming from first floor. Fire was ignited by something thrown into building. Fire 

department called; police and FBI investigating as possible hate crime. (ADC, 9/13) 

Threats 

Chicago. Several bomb threats reported. (Chicago Tribune, 9/13) 

Chicago. Man entered Arab American-owned grocery, approached owner with bag 

in his hands, claimed to have bomb and threatened to ‘‘blow up this store like you 

Arabs blew up the World Trade Center.’’ Man arrested and charged with hate crime, 

assault and disorderly conduct. (ADC, 9/13) 

Chicago. High school crowd chanted threats at passing cars with occupants who 

appeared Arab. (AP Worldstream, 9/13) 

Chicago. While closing office of Arab American Action Network, three members 

threatened by man driving by: ‘‘We’re going to make sure you guys are going to get 

yours!’’ (AP Online, 9/12) 

Harassment 

Chicago. Crowd of young people shouted anti-Arab insults at Bridgeview Mosque. 

(Chicago Tribune, 9/13) 

Discrimination/Profiling 

Chicago. Palestinian American medical technician told coworkers not comfortable 

and terminated from position. He had been suspended without pay after joking 

about image of Palestinians celebrating after 9/11 attacks. (ADC, 9/19) 

INDIANA

Assaults 

Fort Wayne. Two men attacked, robbed and cut the penis of an Indian man, calling him an Arab and saying, ‘‘to be an American you must be circumcised.’’

(MSNBC.com 10/1) 

Gary. Assault rifle fired more than 21 shots into Yemen native Hassan Awdah’s 

gas station, 9/12. Awdah shielded by thick glass; gunman also shot through wall behind which Awdah crouched. No one was injured. Investigation turned over to FBI 

(CNN.com, 9/19) 

409

Palos Hills. Two Muslim female students beaten at Moraine Valley College. Two 

Arab male students assaulted offenders in defense of the women. (ADC, 9/11) 

Discrimination/Profiling 

Indiana couple, husband from Pakistan, claims that captain of Delta Flight 

matched their last names, Malik, to list of possible security threats and delayed 

flight until they could be searched. (Evansville Courier Press, 10/12) 

IOWA

Vandalism 

Des Moines. Bottles were thrown and windows smashed at Bosnian bar and restaurant, 9/28. Assailants, wielding BB gun, hammers and bat, assaulted a woman 

in parking lot behind bar. Witnesses said assailants shouted obscene remarks about 

Bosnians and Muslims. Police have disputed these claims and believe incident was 

run-of-the-mill bar fight that stemmed from earlier conflict among customers. (Des 

Moines Register, 10/6) 

Evansville. Local man rammed his car at 80 miles per hour into Islamic Center. 

(Washington Post, 9/14) 

KANSAS

Assaults 

Topeka. Muslim student was attacked at Washburn University. (MSNBC.Com, 10/

9) 

Threats 

Kansas City. Phone calls urging retaliation against Arabs and Muslims led to closing of Palestinian-American restaurant and two Islamic schools. (Kansas City Star, 

9/13) 

KENTUCKY

Assaults 

Islamic Meeting Places vandalized and one Indian student attacked because he 

was believed to be an Arab. (AAI, 9/13) 

Harassment 

Harrods Hill. Neighborhood sign: ‘‘Arabs are Murderers.’’ Man refused neighborhood association’s request to take it down. Two Arab Americans live in neighborhood. (ADC, 9/14) 

Discrimination/Profiling On Sept. 21st, in Northern Kentucky, outside Cincinnati, 

federal agents took the computers and personal papers of more than two dozen 

Muslims. On Sept. 22nd, said they had found nothing of concern. (Cincinnati 

Enquirer 9/24). 

LOUISIANA

Vandalism 

Parish of St. Bernard. Islamic school and a number of businesses have been repeatedly vandalized. (Times-Picayune 9/18) 

New Orleans. Muslim-owned convenience store vandalized. (ADC, 9/14) Louisiana 

(cont.) 

New Orleans. Windows of mosque shot at with BB gun and neighboring Islamic 

school windows shattered by rocks. Two people arrested. (ADC, 9/13) 

Harassment 

Jefferson Parish. Schools were closed after classmates taunted students of Middle 

Eastern origin. (Washington Post, 9/15) 

MARYLAND

Attacks 

Belmont. Eyewitness reported Greek convenience store owners, believed to be 

Arab, attacked. Police contacted. (ADC, 9/29) 

Baltimore. Sikh-American pizza deliveryman threatened in parking lot of restaurant. Police responded but made no arrests. Attacker returned later that day, 

spraying the Sikh with pepper spray. Coworkers tried to restrain, but were also 

sprayed. Police and ambulance arrived; Sikh filed complaint 9/29, but was arrested 

410

10/4 on charges of second degree assault (attacker alleged Sikh threatened to kill 

him). (ADC, 10/4?) 

Vandalism 

Resident found two nails underneath tires of both his and wife’s cars. His antenna 

also bent and toothpicks broken in keyhole of his mailbox. (ADC, 10/6) 

Arab American woman reported excrement covering door handle of her car and 

long scratch on its side. (ADC, 9/22) 

Germantown. Rear window of minivan smashed while parked in front of Arab 

American home. Family targeted twice previously: while out driving, firecracker 

thrown in front of car. Sixteen (16) year-old daughter attacked on Montgomery College campus by group of young adults. (ADC, 9/28, 9/21, 9/12) 

Rockville. Rug company owned by Palestinian set on fire. Owner reported threatening phone calls 9/ 11. (ADC, 9/ 11) 

Two adjoining buildings owned by a Palestinian burned to ground. (Miami Herald, 

9/13) 

Burtonsville. Home damaged with graffiti; auto pushed out of driveway and hit; 

causing approximately $5,000 in damages to the car. (AAI) 

Threats 

Baltimore. Daughter of AAI president received threatening phone calls in dorm 

room at college. (AAI, 

Harassment 

Gaithersburg. When Arab American construction worker reported constant threats 

and hostility received at work, supervisor responded ‘‘Well, don’t you think they 

have a right to be angry?’’ Coworker acted as if he would attack with metal pipe. 

(ADC, 10/2) 

MASSACHUSETTS

Attacks 

Holden. Police arrested and charged man with assault and battery to intimidate 

for race or religion, simple assault, two counts of assault and battery on a police 

officer, destruction of property and driving to endanger. Assailant was stopped at 

traffic light when he saw Middle Eastern looking van driver. He got out of his car, 

pulled driver out of his van, punched and yelled at him, striking several times before victim fought back. He then assaulted two police officers and destroyed property 

in police booking room. (Boston Herald/AP, 10/1) 

Fairhaven. Arab American attempting to obtain restraining against neighbors. Father hit with baseball bat, ending up in emergency room; tires of son’s car slashed; 

followed and harassed with racial slurs, such as ‘‘hey you f———Arab terrorist, you 

bombed the World Trade Center.’’ (ADC, 9/19) 

Boston. 20-year-old Saudi Arabian Boston University student attacked 9/16, by 

group of men as he left a Back Bay nightclub. Student suffered two knife wounds 

in his arm and third puncture to his back. (Boston Herald, 9/18) 

Boston. FBI agents, mistaking her fiance’s last name with that of Mohammed 

Atta, dragged veiled Saudi woman down corridor of Westin Copley Place Hotel, 

handcuffed and beat her leaving a 6’’ scratch across her face. She had accompanied 

her family on numerous visits to Boston for father’s medical treatment. Media reports of incident did not refer to error or include public apology by FBI. (Boston 

Globe, 9/16) 

Vandalism 

Laurel. Car belonging to Indian immigrant spray painted with ‘‘Terrorist 

murderer′′; tires slashed and windshield shattered. Police investigating as hate 

crime. (ADC, 9/19) 

Fall River. Plastic bottle containing chemical hurled at Mobil gas station managed 

by Pakistani man. No one was hurt. (Boston Herald, 9/14) 

Everett. Softballs inscribed with pro-American slogans including ‘‘God bless America’’ and ’ Freedom for all,’’ thrown through window of cafe owned by a Greek American. Owner believes assailants were aiming for nearby Middle Eastern cafe, and 

missed target. (Boston Globe, 9/13) 

Weymouth. Fire set at gas station owned by Lebanese man (police believe a man 

and a woman doused a pump with gas and set it on fire before running away). (Boston Globe, 9/13) 

Plymouth. Pizza shop owned by Iraqi American badly damaged by fire. The owner 

had been receiving threatening calls prior to fire and bullet left at front door. (Boston Herald, 9/13) 

411

Quincy. Two Middle Eastern markets vandalized. (Boston Globe 9/13) 

Somerset. Three teenagers set fire to store they believed to be Arab owned (in fact 

owned by Indian American). Teens arrested and told police they wanted to ‘‘get back 

at the Arabic people for what they did to New York.’’ (Boston Globe, 9/12) 

Harassment 

Cambridge. Muslim Harvard University graduate student wearing hijab verbally 

and physically harassed on way to worship by four white males who tried to take 

off her hijab and reportedly said, ‘‘What are you doing here? Go home to your own 

country’’ (Harvard University Wire, 10/1) 

Discrimination 

Boston. On 10/8, Pakistani consultant with U.S. work visa pulled off United flight 

to Washington, DC area. Airline officials had identified him as security risk because 

his name is similar to one on FBI list of suspected terrorists. By time he was cleared 

by officials, plane had already departed. (Wall Street Journal, 10/23) 

Boston. Indian-American flying to Los Angeles asked to disembark plane by 

United Airlines flight attendants who explained that passenger not comfortable with 

him on board. United put him on another flight, departing four hours later. (NPR, 

Weekend All Things Considered, 9/17) 

Boston Logan Airport. Various media report passengers pulled off three separate 

flights. Suspicions of flight crews determined to be unwarranted in each instance. 

(Los Angeles Times, 9/16) 

Boston area. Students of Tufts University Egyptian professor walked out of class 

after he entered classroom. (NIAMC) 

MICHIGAN

Assaults 

Lincoln Park. Forty-five (45) year-old Yemeni-American Ali A1 Mansoop shot 12 

times in back and killed, 9/13. Attacker, former boyfriend of Mansoop’s girlfriend, 

broke into their home, saying ‘‘I’m going to kill you for what happened in New York 

and DC’’. Attacker made full confession to police. (ADC, 9/21, WDIV Detroit, 

ClickonDetroit.Com 9/21) 

Fair Haven. Windows of Mazen Mislmanion’s family service station were shot at 

9/ 13 . (AP, 9/ 14) 

Vandalism 

Detroit Metro Airport. Two Arab Americans claim tickets they had placed with 

personal items in basket to pass through x-ray missing. Fear they were confiscated 

by security. (ADC, 10/2) 

East Lansing. Home of mosque caretaker shot at. Police providing protection. 

(ADC, 9/27) 

Detroit. Arab American-owned store destroyed by arson. Fire investigators found 

gasoline inside store; molotov cocktail, intact and unlit, outside building (Detroit 

News, 9/23) 

Detroit. Windows of Muslim Students Assoc. office at Wayne State University broken by vandals. (Detroit News, 9/13) 

Threats 

Dearborn. Six bomb threats called in to major businesses. (Detroit Free Press, 9/

13) 

Dearborn. Super Greenland supermarket owner reported two men in car yelled 

threats and racial slurs at Arab American customers. (Detroit News, 9/13) 

Harassment 

Dearborn. Female customer at gas station insulted by man driving by who yelled, 

‘‘Get out of America. Get out of America.’’ (ADC, 9/12) 

Discrimination 

Detroit. Ahmed Esa, a Yemeni American fired from 16-year welding job; told by 

boss to ‘‘go home, you are Arabic, you are Muslim. Go home, pray to your leader, 

go to your mosque and pray. I don’t want to see your face.’’ Esa is suing. (Detroit 

Free Press, 10/2) 

Midland. Despite good record with company, Arab American truck driver suspended by branch manager for ‘safety reasons’. When asked if suspension had anything to do with the attacks or his religion, manager responded affirmatively. (ADC, 

10/2) 

412

Detroit Int’l. Airport. Avis Rent-A-Car employee of Lebanese origin terminated 

after being questioned by FBI for taking two pictures of Osama bin Laden from person distributing them at airport shouting ‘this is the terrorist’. (ADC, 9/26) 

Detroit Int’l. Airport. Yemeni American man, waiting for aunt’s flight to arrive 

from Yemen, publicly searched by U.S. marshals. Officers stopped when satisfied 

man was ‘clear’. (ADC, 9/25) 

Detroit Airport. Federal Express employee asked if he is of Arab origin by Fedex 

Security Chief. Employee later suspended without pay, then called and asked to report back to work. (ADC, 9/19) 

MINNESOTA

Assaults 

Eagen. Indian American woman followed out of grocery store by three high school 

age boys. One pushed her against her car; another punched her in stomach and elbowed her in the back. As they left, said ‘‘This is what you people deserve.’’ (Minneapolis Star Tribune, 10/2) 

Threats 

Minneapolis. Palestinian-born businessman found mutilated squirrel and threatening note in his mailbox. He had also received hate mail at his office. (ADC, 10/

1) 

Discrimination/Profiling 

Four Arab-American men were removed from a Northwest jet and questioned by 

law enforcement after passengers allegedly refused to fly with them. (AP, 9/21) 

Minneapolis-St. Paul Int’l. Airport. Three Iraqi natives prevented from boarding 

Northwest flight to Salt Lake City because some of the passengers and crew were 

upset at their presence. NW officials said they regretted incident but bound by FAA 

rules. (ADC, 9/20) 

MISSOURI

Threats 

St. Louis. Clerks in 7-11 store flooded with telephoned threats after caller to local 

radio station alleged they were celebrating 9/11 attacks. After making purchase, Red 

Cross worker threatened to shoot them if that was true. (St. Louis Post Dispatch, 

9/14) 

Forest Park. Palestinian-American owner of a market contacted police after someone entered store and threatened him. (St. Louis Dispatch, 9/13) 

St. Louis. Mosque received telephone threats. (St. Louis Dispatch, 9/13) 

MONTANA

Discrimination/Profiling 

Highway Patrol officers pulled over caravan of ‘‘Arab-appearing’’ people with MA 

license plates after 911 call reported group of 15-20 people with olive skin driving 

5 cars and talking to one another on walkie-talkies. When they were pulled over, 

it was learned that they were Puerto Ricans on way to start a church in Oregon. 

(Missoulian, 9/14) 

NEVADA

Discrimination/Profiling 

Palestinian American officer at Dept. of Corrections filed complaint with EEOC 

about hostile comments coworkers made about Arabs in the U.S. (ADC, 9/14) 

NEW JERSEY

Assaults 

Teaneck. Man hanging U.S. flag on his car approached by woman who asked if 

he was ‘‘Arab’’. When he responded ‘‘Yes, why’’, she replied ‘‘Because I was in the 

department store buying a rope to hang myself before you kill me.’’ The man ignored 

her remark and continued hanging his flag with his back turned when she assaulted 

him with her fist and keys. He slapped her in the face, and she left. (ADC, 9/19) 

Muslim attendant at a service station punched in face by a motorist. (AP State 

and Local Wire, 9/13) 

Vandalism 

Molotov cocktail thrown at a Hindu temple. (AP State and Local Wire, 9/13) 

Garbage and stones thrown at car owned by Sikh. (AP Worldstream, 9/13) 

413

Two businesses owned by Indians were spray-painted with the words ‘‘Leave Now 

[expletive].’’ (Philadelphia Inquirer, 9/13) 

Portuguese American wife of Syrian reported car vandalized. (ADC, 9/22) (ADC, 

9/22) 

Collingswood. Vandals spray painted ‘‘leave town‘ on walls of two Indian-owned 

businesses. (www.hatewatch.org, 9/12) 

Threats 

West Babylon.Man arrested and charged with possessing homemade metal pipe 

bomb and other explosive material. He showed pipe bomb to friends, saying he 

‘planned to use the bomb to get an Arab’’. Friends took the pipe bomb and called 

police. (Bergen County Record, 9/17) 

Carload of people drove by Arab neighborhood yelling ‘‘We’re going to bomb you 

when you sleep!’’ (AP State and Local Wire, 9/13) 

Harassment 

Turkish woman wearing Islamic head scarf verbally abused by woman who leaned 

out of her car and cursed at her. (AP State and Local Wire, 9/13) 

Discrimination/Profiling 

A number of Pakistani immigrants reporting detainment and harsh treatment at 

the hands of FBI agents. (Washington Post, 10/3). 

NEW YORK

Assaults 

Bronx. Yemeni man working at newsstand hit on head with bottle by three men 

who dragged him to street, allegedly yelling, ‘‘You Arabs get out of my neighborhood. We hate Arabs! This is a war!’’ (Daily News, 9/30) 

Manhattan. Two drivers assaulted and suffered minor injuries. (New York Times, 

9/24) 

Long Island. Police charge man with bias crime after he assaulted gas station attendant whose ethnic background he questioned. (New York Post, 9/19) 

Buffalo. On 9/16, Arab-American man assaulted by teenage employee at the Tops 

Market on Broadway. Police charged Brian K. Marshall, 18, with second degree assault as a hate crime and aggravated harassment after the victim told police Marshall pushed a steel restroom door with both hands into his head. The victim, who 

briefly lost consciousness, said Marshall called him an ‘‘Arab terrorist,’’ and that 

when he left the restroom, several employees and his alleged assailant laughed at 

him and refused to offer him aid. (Buffalo News 9/18) 

Stony Brook. Shots fired at home of Indian-American Stanford University graduate. (San Jose Mercury News, 9/18) 

Albany. Two college students hit in face, apparently because of their Middle Eastern heritage. (New York Times, 9/15) 

New York. Intoxicated 75-year old man tried to run over Pakistani woman in 

parking lot of shopping mall; followed her into a store and threatened to kill her 

for ‘‘destroying my country.’’ (AP Worldstream, 9/13) 

Staten Island. Arab American soccer player for College men’s team nearly run 

down by car. (Daily News, 9/13) 

Suffolk County. Man arrested for allegedly making anti-Arab threat and pointing 

pistol at gas station employee. (San Francisco Chronicle, 9/13) 

Manhattan. Sikh man pounced on by three white men yelling ‘‘terrorist.’’ (New 

York Times, 9/12) 

Ronkonkoma. Man arrested after waving pellet gun and shouting ethnic slurs at 

gas station attendant. (Newsday, 9/12) 

Ardsley. When Arab American deli owner responded affirmatively to customer’s 

asking if he was Arab, customer cursed and yelled at him. As deli owner attempted 

to escort him out of store, customer sprayed him with pepper spray. (ADC, 9/11) 

Richmond Hills. Indian American attacked with baseball bat; hospitalized with 

severe injuries. (IACFPA, 9/18) 

Vandalism 

Bronx. Over past two weeks two medallion taxis belonging to Muslim drivers set 

on fire. (New York Times 9/24) 

Bensonhurst. Nine parked livery cars and taxis vandalized. (60 to 75 percent of 

the city’s medallion-cab drivers are of Arab, South Asian or North African descent.) 

(New York Times 9/24) 

Buffalo. On 9/22, passing bicyclist smashed two windows of Arab-run convenience 

store. (Buffalo News 9/24) New York (cont.) 

414

Manhattan. Six to eight men harassed and threw rocks at 36 year old Arab American. (New York Post, 9/19) 

Manhattan. Stones thrown through windshields of cabs in Central Park, apparently targeting dark-skinned drivers. (Time, 9/18) 

Washington Heights. Thirty-five (35) year-old man complained to police that a 

man spit in his face and made anti-Arab remarks. (Daily News, 9/17) 

Manhattan. When Muslim American reported to two patrol officers that he was 

spat upon and harassed, the officers allegedly responded ‘‘(your) people should have 

known about this before ... (you) deserve everything (you) get.’’ (ADC, 9/17) 

Brooklyn. Motorist blocked path of cab driver that appeared to be of Middle Eastern descent. Motorist pounded on car shouting, ‘‘Get out of the car, Arab. You are 

going to die, you Muslim.’’ (Daily News, 9/14) 

Nesconset. Grocery owned by Pakistani American target of apparent arson. 

(Newsday, 9/ 11) 

Threats 

Manhattan. Staples employee harassed Arab American customer about his accent 

and threatened to cut his throat. Police were called and report filed. (ADC, 10/1) 

Rochester. Contractor received daily threats and verbal assaults by coworkers 

since 9/1 l; include ‘‘Let’s kill all the Arabs we find here′′; ‘‘We’re going to kill you 

and send you back where you belong’’ .... (ADC, 10/1) 

North Patchogue. Sign on fire department vehicle, driven by senior NPFD official: 

‘‘Let’s kill all the ragtops and turbanheads. Let God sort it out.’’ (ADC, 9/26) 

Manhattan. Message on television station answering machine: ‘‘F———Arabs, I 

know where you live and I’m going to murder you. . . get out of my f————country.’’ (ADC, 9/23) 

Bronx. Threatening, expletive filled messages including ‘‘you better watch your 

back, Muslim’’ left on Muslim Center voice mail throughout week. (ADC, 9/19) 

Queens. Jordanian newsstand worker reported man threatened to kill him. (Daily 

News, 9/17) 

Brooklyn. Arab American grocer subjected to racial slurs and threats after grocer 

attempted to pay delivery bill. The grocer was then told to call main office where 

manager made racist remarks. Incident reported to police. (ADC, 9/13) 

Brooklyn. Woman picking up son from school threatened by ‘older Caucasian 

man’. (CAIR, 9/ 11) New York (cont.) 

Hicksville. Sikh man chased him as- he fled home. (Newsday, 9/11) 

Vandalism 

Queens. Anti-religious graffiti scrawled on sides of Bangladeshi newspaper office. 

(New York Post, 9/19) 

Manhattan. Threatening letters sent to upper east side residents who may be of 

Arab descent. (New York Post, 9/19) 

Buffalo. Vehicle belonging to Arab American torched. Police and fire officials investigating. (Buffalo News, 9/17) 

New York City. ‘‘Don’t support terrorists’’ spray painted on awning of Afghanistanowned ‘Chickens ‘R Us’ restaurant. (Daily News, 9/17) 

Brooklyn. Palestinian American head of Arab American Family Service Center received several threatening calls, one saying, ‘‘you should all die for what you’ve done 

to my country.’’ (XINHUA, 9/12) 

Harassment 

Manhattan. Priority mail package containing dried pig’s ear and remarks of bin 

Laden delivered to Afghan Mission. (New York Post, 9/19) 

Discrimination/Profiling 

Manhattan. Permanent resident from Moroccan received no mail for some time 

since 9/11. When mail finally delivered, believes did not get all bank and credit card 

statements; contacted credit card companies to cancel account and issue new card 

with different address. Fears retribution if files complaint; is considering moving. 

(AAI, 10/10) 

Manhattan. Man detained in New York. After 20 days, authorities would still not 

allow family to see him; did allow lawyer visit. Hearings scheduled three times; cancelled three times by FBI. (AAI, 10/10) 

Rochester. Turkish man contacted EEOC after expected job offer was rescinded. 

Was told by company, ‘‘We decided we don’ need you here.’’ (ADC, 9/28) 

Manhattan. Pakistani American computer analyst for Henry Electronics on one 

week assignment at NY Transit Authority. NYTA supervisor saw picture of man’s 

wife with WTC buildings in background on laptop and said, ‘‘Oh boy, you’re in real 

415

trouble.’’ Short while later, supervisor told Pakistani he did not want him to work 

there; he was then also terminated from Henry Electronics. (ADC, 9/21) 

Island Park. Muslim woman fired from part-time job at laundry. Had been there 

three years; boss said he didn’t know she was Muslim. Although the woman claims 

he is afraid of her and she is ‘loved’ by the customers; he alleged they threatened 

to boycott store after hearing her say, ‘‘America had it coming’’ while watching destruction of World Trade Center on television. (Newhouse News, 10/17) 

NORTH CAROLINA

Assaults 

Greensboro. University of North Carolina Lebanese student attacked and taunted 

by two men who told him to ‘‘Go home, terrorist.’’ They hit him with their fists, 

twisted his arm and broke his glasses. (MSNBC.Com 9/19) 

Vandalism 

Charlotte. On 9/25, Arab American-run restaurant 

Charlotte. On 9/25, Persian rug store vandalized with anti-Arab epithets, swastika, and the letters KKK. (Charlotte Observer, ) 

Charlotte. Windows broken and containers filled with gasoline left at Persian rug 

store. Police investigating whether attack is hate crime. (AP, 9/18) 

OHIO

Threats 

Outside Cleveland. Two men posing as salesmen asked Arab American businessman if he was from Afghanistan, threatening to kick him if he was. The men were 

arrested. (ADC, 10/3) 

Vandalism 

Cortland. Fire set to hedge outside Indian American-owned gas station. 

(www.hatewatch.org; 9/19) 

Suburban Cleveland. Guru Gobind Singh Sikh Temple attacked with lit bottles of 

gasoline. (New York Times, 9/18) 

On 9/17 a 29-year-old man smashed his car through the entrance of an unoccupied Ohio mosque at 80 mph., landing in a fountain. (Chicago Tribune, 9/18) 

Cleveland. Ford Mustang driven through entrance of Ohio’s largest mosque. 

Mosque unoccupied at time; only driver injured. (Estimated damages: $100,000) 

(AP, 9/13) 

Discrimination/Profiling 

Cleveland Int’l. Airport. Pakistani American reported that hours after passing intense security, he was singled out by police officers who scanned his bag twice with 

x-ray machine just before he was to board his flight. (ADC, 9/22) 

OKLAHOMA

Assaults 

Tulsa. Police investigated attack on food store employee jumped by three people 

while leaving his apartment. He was knocked down, eyes covered and beaten. The 

men further threatened to ‘‘cut you like you cut our people.’’ (Tulsa World,9/14) 

Tulsa. Police classified beating of Pakistani native by three men outside of service 

station as hate crime. Victim hospitalized. (Tulsa World, 9/11) 

Threats 

Waurika. Fire broke out on roof of truck stop owned by Sikh after caller repeatedly threatened he wants to ‘‘kill all you Muslims’’ and ‘‘kill everyone up there who’s 

not white.’’ Closed circuit videotape showed man in pickup threw something onto 

roof before fire. (Fort Worth Star Telegram, 10/2) 

Harassment 

Oklahoma City. Motorists made obscene gestures outside Islamic Society building. 

(AP Worldstream, 9/13) 

OREGON

Assaults 

Eugene. California woman arrested after attempting to pull turban off head of 

Sikh man she believed he was an Islamic extremist. 

416

Vandalism 

Vancouver. Muslim family new to neighborhood reported to Sheriff’s office that ‘murder’ had been spray painted on their driveway. (Oregonian, 9/15) 

Portland. While shopping at Target, tires of Pakistani man’s car slashed. Police 

investigating as possible hate crime. (Oregonian, 9/19) 

Gladstone. Woman reported racial slur against Arabs painted on street in front 

of her house. (Oregonian, 9/12) 

Threats 

Eugene. 33-year-old man arrested after making threatening phone call to Islamic 

Cultural Center. (New York Times, 9/18) 

Portland. Customers threatened to blow up store and homeland of Iraqi convenience store clerk. In fear, the clerk closed store early. (Oregonian, 9/14) 

PENNSYLVANIA

Assaults 

Philadelphia. Off-duty police officer pulled gun on Pakistani convenience store 

owner. (Philadelphia Daily News, 9/13) 

Philadelphia. Foreign-looking taxi drivers threatened. (Philadelphia Daily News, 

9/13) 

Philadelphia. Muslim cab driver reported to police passenger broke his arm when 

he eached back to receive fare. (Plain Dealer, 9/13) 

Meadville. Female high school student of Middle Eastern descent attacked by man 

with knife, who yelled at her, ‘‘You’re not an American. You don’t belong here!’’ He 

was arrested and is currently in jail. (Pittsburgh Post Gazette, 9/18) 

Threats 

Threats made to Muslim and Arab students. (Morning Call, 9/15) 

Harassment 

Allentown. Harassing voice mail and e-mail that caused the Allentown mosque to 

cancel its services this week. (Morning Call, 9/15) 

Lehigh Valley. Muslim Association leaders reported prank telephone call and a 

carload of people shouted derogatory words at congregation members leaving the 

mosque. (Morning Call, 9/15) 

Exeter. Ten pigs’ heads left outside mosque. (Press Association, 9/13) 

Discrimination/Profiling 

Philadelphia. Mentally and physically disabled Lebanese American girl mistreated at school; officials ‘unyielding’. Father hired lawyer to file complaint against 

school system. AAl providing resources. (AAI, 10/10) 

Philadelphia. Arab American teacher at Christian school told by principal that he 

was being replaced and they do not want him to return. When teacher asked for 

reason, principal stated ‘‘...because you’re Arab.’’ (ADC, 9/13) 

RHODE ISLAND

Assaults 

On 9/16, pregnant Muslim woman wearing shawl was using payphone when car 

pulled up behind her and someone in the car threw rock, hitting her foot. She 

turned to see what was happening when the passenger, a young woman of around 

20, threw another rock and missed. (ADC, 9/16) 

State fire investigators detonated explosive device left at gas station owned by 

Lebanese Americans. Police investigating as possible hate crime. (Providence Journal Bulletin, 9/18) 

Three teenagers arrested for throwing molotov cocktail on roof of convenience 

store. Told police they wanted to ‘‘get those Arabs for what they did to us.’’ (AAI, 

9/13) 

Vandalism 

Pawtucket. Anti-Arab epithet spray-painted on garage door of gasoline station 

owned by a Lebanese-American. (Providence Journal, 9/18) 

Cranston. Pakistani-owned convenience store vandalized. (MSNBC.Com, 9/14) 

Discrimination/Profiling 

Providence. Police forced Sikh telecommunications consultant and ten others off 

Amtrak train and questioned them for two hours. Consultant charged with possession of concealed weapon: three-inch knife traditionally carried by Sikh men. (ABC, 

CNN) 

417

SOUTH CAROLINA

Vandalism 

Charleston. Vandals broke window of minivan belonging o man of Middle Eastern 

descent. (Post and Courier, 9/15) 

TENNESSEE

Assaults 

Memphis. Muslim woman badly beaten on way to worship. (Dallas Morning News, 

9/16) 

Threats 

Waverly. Two Arab American clinicians received threatening phone calls telling 

them to ‘‘go home and get out of our country′′; their daughter in Atlanta also received threatening calls. (ADC, 9/12) 

TEXAS

Assaults 

Iraqi man shot in leg after struggle with assailant, described as African-American, 

greeted man in Arabic and then pulled out a gun. Police are investigating as possible hate crime. (MSNBC.Com, 9/26) 

Houston. Man of Middle Eastern ancestry wounded by gunman. Attacker approached victim as he was getting out of his car, asked for cigarette, then held 

handgun to victim’s head, cursed and accused him of having blown up the country 

and killing his family and friends. Victim grabbed gun and was shot in left hip. 

Attacker fled scene on foot. (AP, 9/21) 

North Texas. Shots were fired at Pakistani home. No one was injured. 

(MSNBC.Com, 9/24) 

Fort Worth. While visiting Botanic Gardens, two Ethiopian men were stabbed by 

white man who apparently approached them and, without saying a word, stabbed 

each one before fleeing. The two men were hospitalized. (Fort Worth Star Telegram, 

9/22) 

Dallas. Pakistani grocer in shot and killed 9/15. (LA Times, 9/18) 

San Antonio. Three bullets struck Sahara Grocery. (ADC, 9/11) 

San Antonio. Shiraz Iranian Restaurant attacked. (ADC, 9/11) 

Vandalism 

Austin. Carpet store owned by Palestinian American destroyed by fire. (American 

Statesman, 9/23) 

Carrollton. Window at Islamic Center of broken by slingshot. (LA Times, 9/18) 

Houston. Auto mechanic shop owned by Pakistani torched in early morning fire. 

No one was injured. Son of owner received threats a few days prior. Federal law 

enforcement agents and Houston Fire Department arson unit investigating. (Houston Chronicle, 9/17) 

Austin. Incendiary devices thrown onto roof of Nation of Islam mosque. (ADC, 9/ 

17) 

Irving. Six bullets shattered windows of Islamic Center. (AP Worldstream, 9/13) 

Denton. Islamic Society fire bombed. (Dallas Morning News, 9/13) 

Professor of Middle Eastern language and cultures at University of Texas spat on 

by passerby. (ADC, 9/11) 

Threats 

North Texas. Two death threats prompted Pakistani-American to shut down his 

gas station. (AP, 10/9) 

Austin. Arab American realtor received phone threats, ordering him to ‘‘leave this 

country or else!’’ (ADC, 9/13) 

Harassment 

San Antonio. Two Muslim girls verbally abused in high school. (ADC, 9/11) 

Discrimination/Profiling 

Houston. Palestinian anesthesiologist at Baylor College of Medicine was assisting 

three physicians during surgery, when one began to complain about Islam and Palestinians. When the anesthesiologist told him he is Palestinian, an argument ensued, and the physician ordered him out of the operating room. Physician’s behavior 

reported to in-charge nurse and hospital vice president by nurse and doctor who 

were present. (ADC, 9/26) 

418

San Antonio. Ashraf Khan, a 32-year-old Pakistani businessman, removed from 

Delta Airlines flight after the flight crew said they did not feel comfortable with him 

aboard. (Los Angeles Times, 9/20; St. Petersburg Times, 9/17) 

Palestinian woman sent home by boss, who said he didn’t know if she would be 

celebrating death of Americans in the office. (ADC, 9/12) 

UTAH

Vandalism 

Salt Lake City. 31-year-old man doused Pakistani-owned Curry in a Hurry restaurant with gasoline and ignited it, 9/13. (Associated Press, 9/27; Salt Lake Tribune, 9/13) 

VIRGINIA

Assaults 

Roanoke. Arab American family suffered series of incidents: mother blocked from 

entering her apartment by group of young men; fist-sized rocks thrown through 

twoyear old daughter’s open bedroom window; their two cars scratched and dented; 

mother again prevented from entering and hit with baseball; rocks again thrown 

through windows almost hitting daughter. (ADC, 9/30) 

Falls Church. Muslim hit in head with baseball bat near Dar Al Hijra mosque. 

(ADC, 9/28) 

Fairfax County. On 9/23, white male pulled to stop light ahead of Middle Eastern 

person, got out of vehicle and approached Middle Easterner with hammer, yelling, 

‘‘You guys blew up the Trade Center. You m——— f———’’, and spit on victim’s hood. (Fairfax County Police Report, 10/10) 

Fairfax. On 9/19, teenagers playing basketball harassed; one hit in stomach and 

face. (Washington Post 9/21; Fairfax County Police Report, 10/10) 

Alexandria. Afghan American approached by passerby who asked his ethnicity. 

When Afghan replied affirmatively, passerby screamed, ‘‘I’m going to kill you’’ before 

assaulting him. (CBS, 9/16) 

Falls Church. On 9/14, Afghan American assaulted after verbal altercation in a 

parking lot. (Washington Post 9/18) 

Fairfax County. On 9/11, intoxicated man entered Chinese restaurant, punched 

patron in back of head; yelled at staff about being foreigners, should not be in this 

country and referred attacks. (Fairfax County Police Report, 10/10) 

Fairfax County. On 9/11, man asked woman where she was from, said ‘I’m gonna 

show you where I’m from’, returned with gun, stated he wouldn’t be afraid to use 

it, pointed it at woman and told her to go back to her country. (Fairfax County Police Report, 10/10) 

Vandalism 

Fairfax County. On 9/30, mailbox smashed; drive-byes yelled ‘why are you here; 

go back to where you came from.’’ (Fairfax County Police Report, 10/10) 

Springfield. On 9/29, vehicle parked at mall, ‘keyed’ with ‘‘F—- Palestine Terrorists’’ and strewn with garbage and U.S. postage stamp. (Fairfax County Police Report, 10/10) 

Home of Vietnamese woman and husband of Arab origin and found epithets written in yard. (AA1, 10/10) 

Fairfax. Large swastika burned into lawn of Middle Eastern family’s home. (ADC, 

9/28) 

Fairfax County. On 9/28, vehicle rammed by driver who said ‘go back to your 

country you foreigner.’’ (Fairfax County Police Report, 10/10) 

Fairfax County. On 9/16, Pakistani-owned store trashed by suspects making statements, ‘‘You are terrorists. You support Osama bin Laden. This is our country, not 

yours.’’ (Fairfax County Police Report, 10/10) 

Fairfax County. ‘‘F———Arab’’ scratched on vehicle hood and headlights broken, 

9/16. (Fairfax County Police Report, 10/10) 

Fairfax County. Graffiti in boys’ restroom at Oakton High School, 9/14: ‘‘Towel 

Heads got 2 Options 1) Go F———- Home 2) Hit the Curb.’’ (Fairfax County Police 

Report, 10/10) 

Officials at two mosques reported vandalism and threatening calls. (Washington 

Post, 9/13) 

1Old Town Alexandria. Islamic bookstore vandalized. Owner fond two bricks on 

premises with notes that said, ‘‘You come to this country and kill. You must die as 

well.’’ And ‘‘Arab murderers.’’ (Washington Post, 9/13) 

Fairfax County. On 9/13 student found note, stating ‘‘Die you stupid 

halfPakistani...Burn in Hell Die!’’ (Fairfax County Police Report, 10/10) 

419

Fairfax County. Sign indicating site as future home of Muslim society vandalized 

and attempt made to set it on fire, 9/14. ‘‘F—- the Arabs’’ written on sign. (Fairfax 

County Police Report, 10/10) 

Fairfax County. ‘‘F—- Arabs written on door of home. (Fairfax County Police Report, 10/10) 

Fairfax County. Anti-Arab and anti-Jewish statements spray painted on walking 

tunnels, 9/13. (Fairfax County Police Report, 10/10) 

Fairfax County. ‘‘F—- Islam’’ and ‘‘F—- Arabs spray painted on property, 9/12. 

(Fairfax County Police Report, 10/10) 

Threats 

Resident reported threatening phone call. Caller first mocked his name, asked to 

speak with wife, and then said, ‘‘You’re all going to die.’’ (ADC 10/3) 

Fairfax County. Madina Afghan Kabob restaurant received threatening phone 

calls 9/14 warning family to go back to Afghanistan or they would be killed. (Fairfax 

County Police Report, 10/10) 

Fairfax County. On 9/23, note found on windshield: ‘‘Muslim children are hell 

bound′′; on daughter’s bike: ‘‘Muslims must die!’’ (Fairfax County Police Report, 10/

10) 

Fairfax County. Washington Islamic Academy received letter, 9/18, stating all 

Muslims should be shot and killed and are evil; on 9/12, received nasty phone calls; 

people driving by yelling and making obscene gestures. (Fairfax County Police Report, 10/10) 

James County. Woman arrested for threatening to bomb mosque. Coworker contacted police after woman emailed her ‘‘. . .I am making plans to bomb the mosque 

in Hampton.’’ (Daily Press, 9/13) 

Hampton. Police investigating phone threat received by Islamic Center and 

mosque. Male voice threatened ‘‘prepare to die.’’ (Daily Press, 9/13) 

Harassment 

Fairfax County. Arab female stopped at traffic light 9/22, white male in another 

vehicle yelled ‘‘You are not wanted here you animals! Go blow up another building.’’

(Fairfax County Police Report, 10/10) 

Charlottesville. Arab American physician verbally assaulted by neighbor. (ADC, 

19/17) 

Sterling. Members of Islamic community arriving at Red Cross Center to donate 

blood found hallway painted with ‘‘Die pigs.’’ And ‘Muslims Burn Forever.’’

(XINHUA, 9/12) 

Fairfax County. On 9/11, several white males in front of K-Mart asking people to 

sign petition to support America, displayed banner with anti-Islamic sentiments, 

shouted at people who appeared to be of Middle Eastern descent. (Fairfax County 

Police Report, 10/10) 

Manassas. Hate messages left on answering machine of mosque (AP Worldstream, 

9/13) 

Discrimination/Profiling 

Ashburn. Egyptian American fired from Wal-Mart. Called into office at store and 

questioned by FBI in early October. Coworkers uncomfortable working with him. 

FBI and Wal-Mart would not comment. (Newhouse News, 10/17) 

Woodbridge. Three-year old boy of half-Arab origin dismissed from day care. 

Mother enrolled him in another center, to receive call from assistant director withdrawing admission after having conversation with former director. Mother alleges 

decision based on ethnicity; not, as director stated, discipline problem. (ADC, 10/2) 

Falls Church. Egyptian American and coworker fired from tax revenue office after 

reporting anti-Arab slur made by their boss to an attorney and city manager. Apparently, after hearing news that suspect connected with 9/11 attacks had been detained, the boss allegedly joked, ‘‘Did he have a rag on his head?’’ In termination 

letters to the two men, the boss claimed they had ‘‘challenged my integrity, impeding my authority to operate this office. Your action is harassment and a breach of 

trust in our relationship.’’ (ADC, 9/24) 

Manassas. Although their children often played in front of their homes, neighbors 

contacted Social Services when Algerian children were seen outside unsupervised. 

(ADC, 9/24) 

Dulles. United Airlines flight to London delayed four hours after Saudi pilot 

sought to fly in cockpit. United pilot refused and returned to gate. Saudi pilot and 

two other men detained and questioned by FBI and INS for three hours. FBI field 

office spokesman said ‘their story check out. . .they were sent on their way.’’ (Pittsburgh Post Gazette9/21) 

420

K-Mart closing manager demoted to hourly-basis employee. Employee suspects demotion because of his national origin and 9/11 attacks; does job well and never been 

written up. (ADC, 9/17) 

WASHINGTON

Assaults 

Snohomish. Man indicted by a federal grand jury on hate-crime charges for allegedly pouring gasoline over a man’s vehicle and then firing a handgun at two people 

leaving the Idriss Mosque on 9/13. (Seattle Times, 9/27) 

SeaTac. Sikh taxi driver assaulted by man he picked up at bar. Suspect asked 

driver if he was a terrorist. Then he choked the cabby, punched him in the face, 

pulled out part of his beard and knocked the turban off his head. (MSNBC.Com, 

9/15) 

Seattle. Three white men attacked a Somali woman with a knife 9/16 in a grocery 

parking lot. (Seattle Times, 9/14) 

Seattle. 53-year-old man charged with first-degree assault and attempted arson 

after dousing car at Islamic Idriss Mosque with gasoline. When confronted by car 

owner, he tried to fire at him, ‘squeezing a shot into the ground’. The man then 

drove his own car into a telephone pole. (Seattle Post Intelligencer, 9/13) 

Snohomish. Man accused of spitting at Middle Eastern woman picking up her 

children at elementary school, arrested. (Seattle Times, 9/14) 

Prison fights broke out over Muslim slurs. (AP Worldstream, 9/13) 

Seattle. Suspect arrested for suspicion of malicious harassment. Allegedly threatened to burn down mosque and walked into mosque wearing his shoes. When asked 

to leave, pushed mosque leader in chest. (Seattle Post-Intelligencer, 9/11) 

Vandalism 

Lynwood. Dar Alarqam Mosque defaced with black paint. The mosque also received a flood of hate calls. (MSNBC.Com 9/24) 

Tacoma. A small arson fire damaged synagogue Sunday in what police termed a 

hate crime. (Seattle Post-Intelligencer, 9/24); 

Edmonds. Iranian-owned grocery vandalized. (Seattle Times, 9/18) A Kenmore 

man is in jail awaiting charges for allegedly pouring gasoline on a Northgate 

mosque and firing a gun when employees there tried to stop him. (Seattle Times, 

9/18) 

Threats 

Vancouver. Man arrested after leaving messages on local Islamic school’s voice 

mail; mosques, other schools and cultural centers threatening to blow them up in 

retaliation for Sept. 11 attacks. (Vancouver Sun, 10/5) 

Seattle. Man charged with malicious harassment for threatening to burn down 

mosque. (Seattle Times, 9/18) 

Seattle. Two men threatened East African home improvement store employee. 

(AAI, 9/16) 

Seattle. Man stormed into mosque, threatening to burn it down. (Seattle Times, 

9/ 16) 

Spokane. Threats made at two gas stations owned by Arab Americans. (The Hotline, 9/13) 

Seattle. Sign hung from footbridge: ‘‘Death to all Palestinians.’’ Sign later removed 

(Seattle Post Intelligencer, 9/11) 

Seattle. Police report local mosques received not only abusive calls but also several 

death threats, including ‘we will kill you like sheep’. (Seattle Post Intelligencer, 9/

11) 

Taxicab dispatcher received calls threatening company to ‘‘tell your Muslim drivers not to drive today’’, among other threats. (Seattle Times,9/11) 

Discrimination/Profiling 

Seattle. 12 year American Airlines employee escorted off AA flight to Dallas with 

another passenger of Arab origin. They were informed ‘‘pilot does not feel safe with 

you guys on board and we have notified the FBI to come here and question you.’’

Interrogation and background check performed by three Seattle police officers, after 

which they were permitted to board a later AA flight to Dallas. Apologetic stewardess later informed them that pilot of second flight was asked by FBI agent if 

he feels comfortable flying with ‘‘two Middle Eastern men.’’ (ADC, 9/26) 

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WISCONSIN

Threats 

Beloit. On 9/29, Jordanian man reported that threat to blow up his store if he did 

not leave the country in 24 hours. Forty-four-year-old man arrested and charged 

with conveying ‘false bomb threat,’ making threatening phone call and probation 

violations. All charges filed as hate crimes. (MSNBC.Com, 10/9) 

WYOMING

Threats 

Laramie. American-born Muslim woman and her children chased from Wal Mart 

by angry shoppers yelling for her ‘‘to go back to her country.’’ (Associated Press, 9/

11)

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

Washington, DC 

fWHOSE SACRIFICE? 

American citizens are willing to sacrifice civil liberties in the fight against terrorism [front page, Nov. 29], but which Americans are doing the sacrificing? 

Since Sept. 11 the FBI has interviewed me at work and at home because my 

name is similar not to that of one of the hijackers, but to an individual arrested 

with suspected links to the terrorists. 

The FBI has contacted my broker, my neighbors and my friends to learn more 

about me. I was purchasing an apartment, but when I needed to give my down payment at closing I was informed by my bank that my accounts were frozen. No one 

informed me nor could anyone help me resolve the problem. Only an angry settlement attorney was able to unfreeze the funds. 

A month passed, and all seemed normal. Then I found out again that I did not 

have access to transfer funds from my accounts without government approval. 

I am a federal employee. I have not been charged with a crime. I do not support 

terrorism, and I was willing to help the law enforcement agencies. It was my duty 

as an American to answer all the questions asked of me. 

But as time goes by and I have to get ‘‘clearance’’ every time I want to make a 

bank transfer, I feel victimized. Every time I travel and receive the extra security 

checks because of my name it makes me trust my government less. What scares me 

even more is that I am an American citizen, and that is why I am not in jail. If 

I were not a citizen I could be one of the hundreds of detainees, or I could be in 

sitting in front of a secret military court only because the crime I am guilty of is 

that my name is Ali Ayub and not Joe Smith.

f

422

BAR ASSOCIATION OF SAN FRANCISCO

SAN FRANCISCO, CA 94104–1826

November 28, 2001

Dear Senator Leahy, Senator Feinstein and Other Members of the Judiciary Committee: 

The Bar Association of San Francisco (BASF), one of the largest metropolitan bars 

in the nation with some 9,500 members, strongly supports the present effort by the 

United States to eradicate international terrorism. We see that effort as part of our 

nation’s continuing commitment to the rule of law and to the proton of human 

rights around the world. It is thus critical that our war on terrorism. be conducted 

in accordance with the United States Constitution at home and with international 

legal norms abroad. We hate a special leadership role in influencing and upholding 

the legal customs that nations follow in times of crisis. Our country’s fair treatment 

of those accused of wrongdoing, however heinous, has been and must remain a 

mainstay of its human rights policy, for only rigid adherence by the United States 

to standards of due process can render credible our insistence that individuals 

throughout the world be protected from governmental abuse. If we do not uphold 

these standards, we put at risk the moral authority that we will surely need in 

order to bring the current crisis to a swift and successful conclusion. 

For this reason, we are gravely concerned by the issuance on November 13th of 

the President’s Military Order on ‘‘Me Detention, Treatment, and Trial of Certain 

Non-Citizens In The War Against Terrorism,’’ (‘‘The Order ’’) While the intended 

reach of that order remains uncertain, it clearly attempts to constrict by executive 

decree the protections of the Fourth, Fifth and Sixth Amendments now available to 

foreign nationals taken into custody on American soil. The Order pests the unlimited detention without trial or access to courts or counsel of foreign nationals, including those who are longtime legal residents of the United Sues or who have otherwise entered and remained hem in accordance with the law. (Sec. 3) It further 

permits that such nationals be tried and subjected to life imprisonment or death in 

proceedings before military commissions at which ‘‘the of law and the rules of evidence generally recognized principles in the trial of criminal cases in the United 

States district courts’’ would not apply, (Sec. 1 (f)). 

The ‘‘principles of law’’ which ‘‘it is not practicable to apply in military commissions’’ include constitutional guarantees to trial by jury, to be defended by counsel 

of the defendant’s choice, to confront adverse witnesses and evidence, to be convicted 

only on proof beyond a reasonable doubt and a unanimous jury verdict, to a public 

proceeding, and to be free from the ex post facto application of laws. (Compare Sec. 

4). The Order declares that those whom the President determines shall be subject 

to its application art; barred from seeking any form of judicial review or remedy. 

(Sec. 7(b)(2)). In a separate rule-making proceeding, the Attorney General is seeking 

authorization to Surveil communications presently protected by the attorney-client 

privilege. 

BASF opposes these limitations on constitutional rights as imposed by the Order. 

The federal courts have proven fully capable of administering justice in cases involving international terrorism. Pointedly, federal courts in New York have recently 

twice efficiently and with full regard for due process conducted. trials of those accused of acts of terror on American soil. Free of improper lawyer behavior, governed 

by strong judges, the traditional vehicle of due process—juries following sound rules 

of evidence and law-rendered verdicts of guilty in these cases. Appellate review by 

Article Three judges will assure the accuracy and fairness of those judgments. 

Furthermore, the Order presents serious obstacles to the cooperation with our allies in the war on terrorism that will be required for success in that struggle. Only 

last week, Spain announced that it would not extradite to the United States eight 

suspected members of Al Qaida accused of involvement in the horrific crimes of September 11th absent assurances that these defendants would be tried in civilian tribunals. Spain’s abhorrence of military tribunals wielding the power of the death penalty, arising from its own experience with dictatorship prior to 1973, is shared by 

all members of the Council of Europe, including France, Germany, England, and 

Italy, all of whom are presently assisting in the hunt for those responsible for the 

death of thousands in New York, Washington, and Pennsylvania. The United States 

cannot afford to divorce itself from these close friends, many of whom modeled their 

own due process standards on those contained in our Bib of Rights. 

Historic analogy to the Lincoln Assassination trial and the prosecution of invading 

saboteurs during World War II is inappropriate. Both occurred under constitutionally mandated Declarations of War by Congress, which specifically authorized 

military commissions to try those accused of war crimes. In approving the military 

423

1 317 U.S. 1 (1942) 

2 Id, at 38–39 3 Id., at 40. 4 Id., at 19. 

trial of the German saboteurs, In re Quiren 1 limited its holding to those enemy belligerents who pass ‘‘our military and naval lines and defenses. . .in civilian dress’’ armed with explosives, intending the don of war industries and supplies or military 

installations.2 The Supreme Court found that a military trial was permissible in 

these circumstances only because a trial by jury would not have been available to 

one accused of such a war crime when the Constitution was enacted, and that the 

Fifth and Sixth Amendments were not intended to require ‘‘that offenses against the 

law of war not friable by jury at common law be tried only in the civil courts.’’ 3

In so ruling, the high court emphasized ‘‘the duty which rests on the courts, in time 

of war as well as time of peace, to preserve unimpaired the constitutional safeguards of civil liberty....’’ 4

As evidenced by the wartime interment of loyal Japanese-American citizens, the 

imposition of severe limitations of our personal liberty in the name of national security is a practice our nation will likely regret. It must not occur again. Not since 

the battle between the forces of democracy and Nazism has the role of the United. 

States as the preeminent champion of individual liberty and due process been so 

prominent. Our victory over terrorism, when it comes as it surely wily must be accompanied by our adherence to those principles of due process which serve as the 

benchmark of liberty for peoples around the world. 

The Bar Association of San Francisco urges the Judiciary Committee to carefully 

scrutinize the President’s order of November 13th and the proposed administrative 

regulation on attorney-client communications to ensure that our constitutional protections remain intact. We ask the Congress to affirm its confidence in the Bill of 

Rights, as well as the federal judiciary, federal prosecutors, the dedicated Americans 

who serve as criminal defense lawyers, and a jury system that is esteemed by all 

who have watched it function so effectively for generations. 

Sincerely, 

DOUGLAS R, YOUNG

President

ANGELA BRADSTREET

f President-Elect

BAXLEY, DILLARD, DAUPHIN & MCKNIGHT

ATTORNEYS AT LAW

BIRMINGHAM, ALABAMA 35233

December 10, 2001

Hon. Jeff Sessions 

United States Senator 

493 Russell Building 

Washington, D.C. 20510

Dear Senator Sessions: 

I am, doubtlessly, one of your few constituents who has read the entire trial transcript of the Nuremberg Trials, In this vein, and as a result of my experience as 

both a prosecutor and as defense counsel, including appearing before military tribunals, I am writing now to address concern. expressed by sonic members of the press, 

and a few in the Congress, relative to the utilization of military tribunals to determine the innocence, guilt, punishment or release of those who have been Charged 

with crimes arising from the events of September 11, 2001, which are continuing 

today. 

In my opinion, the security of this country can be best preserved by supporting 

and implementing the proposals of President Hush in this regard. I have faith that 

the men and women who would serve on theses tribunals can afford any person accused complete justice, impartiality and fairness in the adjudication of guilt or innocence. Many Americans are unaware that at Nuremberg a number of those who 

were charged with war crimes were acquitted, and that some were convicted of some 

charges made against them, but acquitted of others. I recognize, of course, that (lie 

President’s proposals differ from the procedures at Nuremberg. Nevertheless, I have 

endeavored to familiarize myself with the President’s proposals arid with objections 

to them which have appeared iii the media. I consider myself sensitive to all legitiVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00059 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
424

mate arguments made i11 support of civil rights and liberties, but after considering 

all the arguments -pro and con—I continue to strongly support the President’s proposals, and to endorse them during this crisis. 

lease take these views into consideration as you consider the most appropriate action to take regarding prosecutions arising from the; events of September 11, 2001, 

which are continuing events, and which threaten the security (four country. If I can 

be of any assistance to you in connection with decisions touching upon these issues 

in the United States Senate, or elsewhere, it will be an honor and a privilege for 

me to share my time and the benefit of my experience with you. 

Respectfully yours, 

f BILL BAXLEY

UNITED STATES SENATE

WASHINGTON, DC 20510

November 2, 2001

Dear Colleague:

Attached please find a copy of Jihad in America, a PBS documentary first aired 

nationwide in 1995. This documentary was produced by investigative reporter Steven Emerson after the first bombing of the World Trade Towers in 1993. The documentary explores the ideological and fundraising network that sustains and supports terrorist activities in the United States. In light of the September 11th tragedies, we strongly recommend this video to our colleagues. 

This documentary was made in close cooperation-with noted counter-terrorism authorities from the Federal Bureau of investigation (FBI); the U.S. State Department 

and the Central Intelligence Agency (CIA). The hidden camera footage of key conferences and rallies is particularly revealing. The film includes footage of Islamic 

extremists in New York, Boston, New Jersey, Texas, California, Florida and Kansas, 

detailing their hatred and violent intentions toward Americans, including Christians, moderate Muslims and Jews in the United States. The interviews and taped 

speeches allow these extremists to state their chilling intentions in their own words. 

The film, then and now, has brought the attention of law enforcement authorities 

to the network of Islamic extremists in the United States that promotes a culture 

of hatred, arranges for training in bomb-making and target practice, raises funds 

for militant groups in the Middle East, and in some cases, supports terrorist attacks 

on U.S. soil. 

The documentary makes clear, and we would like to reiterate; that the majority 

of Muslims in the United States do not support terrorist activities, and that Islam 

as a faith condemns such acts of terrorism. It is made clear that the Islamic extremists who promote and carry out their form of Jihad, are as great a threat to moderate Muslims as they are to Christians, Jews and all American citizens. 

Again, we urge every Member of the Senate to view the PBS documentary to help 

us understand the scope of. the threat and what needs to be done to protect U.S. 

citizens. 

Sincerely, 

SAM BROWNBACK

f RON WYDEN

Statement of Kathleen Clark, Professor of Law, Washington University in 

St. Louis 

PRESIDENT BUSH’S ORDER ON MILITARY TRIALS OF NON-CITIZENS: 

BEYOND HIS CONSTITUTIONAL OR STATUTORY AUTHORITY

First of all, I would like to thank Chairman Leahy for the opportunity to provide 

this testimony. I am a law professor at Washington University in St. Louis, and 

have previously taught at the University of Michigan and Cornell law schools. I 

teach courses on national security law as well as legal and government ethics. 

As you know, earlier this month, President Bush signed an order authorizing the 

creation of military tribunals to try non-citizens alleged to be involved in interVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00060 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
425

1 66 Fed. Reg. 57831 (2001). 

2 ‘‘Every trial involves the exercise of judicial power.’’ Ex parte Milligan, 71 U.S. 2, 209 (1866). 3 U.S. Constitution, art. II, § 1. 4See 10 U.S.C. §§ 816 et seq. 5 10 U.S.C. § 802 (listing persons subject to the Uniform Code of Military Justice). See also 

Edmund M. Morgan, Court-Martial Jurisdiction Over Non-Military Persons Under the Articles 

of War, 4 Minn. L. Rev. 79 (1920). 6 71 U.S. 2 (1866). 

7 71 U.S. at 5. 

8 Id. at 210 (‘‘One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress.’’). 9 Id. at 210. 

10 Id. at 209 (‘‘The Constitution of the United States is a law for rulers and people, equally 

in war and in peace, and covers with the shield of its protection all classes of men, at all times, 

and under all circumstances.’’). 11 U.S. Constitution, art. II, § 2. 12Pub. L. 107–40 (Sept. 18, 2001). 13 10 U.S.C. §§ 821, 836. 14 71 U.S. at 210. 15Pub. L. 107–40 § 2(a) states: 

[T]he President is authorized to all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order 

Continued

national terrorism against the United States or the al Qaida network.1 These military tribunals are troubling in many respects, particularly in their denial of basic 

due process protections for defendants, and the resulting possibility of wrongful convictions. Rather than focusing on the issue of civil liberties—which other witnesses 

will address—my testimony will limit itself to the issue of whether the President 

even has the authority to create a military court with such broad jurisdiction to try 

all cases of international terrorism against the United States. As the following paragraphs will show, under the Constitution and statutory law, the President lacks the 

authority unilaterally to create this kind of military tribunal. 

Trials by military tribunals, like trials by civilian courts, involve the exercise of 

judicial power.2 The Constitution vests the judicial power ‘‘in one supreme Court 

and in such inferior Courts as the Congress may from time to time ordain and establish.’’3 A military tribunal, like other tribunals, must be authorized by the Constitution or by Congress. Congress has established military tribunals (courts-martial),4 but has limited their jurisdiction, primarily to offenses committed by members 

of the armed forces.5

In ex parte Milligan, the Supreme Court overturned a conviction of a civilian by 

a military tribunal because the tribunal was not authorized by Congress or the Constitutions.6 The civilian, Lamdin P. Milligan, was arrested in Indiana during the 

Civil War, and charged with conspiring to seize munitions, liberate prisoners of war, 

and communicating with the enemy.7 After a military tribunal convicted Milligan 

and sentenced him to death, the Supreme Court reviewed his habeas petition. The 

Court found that neither the Constitution nor any statute authorized a military trial 

of a civilian where the civil courts were in operation.8 The Court also rejected the 

government’s argument that the military trial was justified under ‘‘the ‘laws and usages of war.’ ’’ 9 The Court held that even such a crisis as the Civil War did not justify a military trial for a citizen not connected with the armed forces, as long as 

the civilian courts were in operation.10

President Bush’s Order purports to find authority in several sources: the President’s constitutional authority as Commander in Chief of the Armed Forces,11 the 

Joint Resolution Authorizing the Use of Military Force,12 and two provisions of the 

Uniform Code of Military Justice.13 None of these authorize the creation of this type 

of military tribunal. 

First, the President’s power as Commander in Chief of the Armed Forces does not 

authorize him to create military tribunals to try non-citizens for crimes that can be 

tried in civilian courts. As the Supreme Court explained in ex parte Milligan, military tribunals for non-military personnel ‘‘cannot [be] justif[ied] on the mandate of 

the President; because he is controlled by law, and has his appropriate sphere of 

duty, which is to execute, not to make, the laws; and there is ’no unwritten criminal 

code to which resort can be had as a source of jurisdiction.’ ’’ 14

Second, the Joint Resolution authorizes the President to use ‘‘force against those 

nations, organizations, or persons’’ that were involved in the terrorist attacks on 

September 11th in order ‘‘to prevent future actions of international terrorism against 

the United States’’ by them.15 Thus, Congress provided statutory authorization for 

426

to prevent any future acts of international terrorism against the United States by such nations, 

organizations or persons. 16 10 U.S.C. § 810. 

In ex parte Quinn, 317 U.S. 1 (1942), Justice Stone asserted that Section 810’s predecessor, 

Article 15 of the Articles of War, explicitly authorized military tribunals for violations of the 

law of war. 317 U.S. at 10–11. While there was other statutory authority for the military tribunal in Quinn, it is unlikely that Article 15 actually had the meaning that Justice Stone attributed to it. 

But completely apart from the proper interpretation of Section 810’s predecessor, an examination of the current Section 810 makes clear it does not provide independent statutory authority 

for military commissions. Section 810 states in full: 

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. 

10 U.S.C. § 810 (emphasis added). 17 10 U.S.C. § 836 states in full: 

(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under 

this chapter triable in courts-martial, military commissions and other military tribunals, and 

procedures for courts of inquiry, may be prescribed by the President by regulations which shall, 

so far as he considers practicable, apply the principles of law and the rules of evidence generally 

recognized in the trial of criminal cases in the United States district courts, but which may not 

be contrary to or inconsistent with this chapter. 

(b) All rules and regulations made under this article shall be uniform insofar as practicable. 

18 317 U.S. 1 (1942). 19 317 U.S. at 10 (‘‘Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those 

charged with spying.’’). 

10 U.S.C. §§ 1553, 1554 (Articles 81 & 82 of the Articles of War, repealed by Pub. L. 84–1028 

(1956)). 10 U.S.C. § 1553 provided: 

Whosoever relieves or attempts to relieve the enemy with arms, ammunition, supplies, mondy, 

or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment 

as a court martial or military commission may direct. 

10 U.S. C. § 1554 provided: 

Any person who in time of war shall be found lurking or acting as a spy in or about any of 

the fortifications, posts, quarters, or encampments of any of the armies of the United States, 

or elsewhere, shall be tried by a general court martial or by a military commission, and shall, 

on conviction thereof, suffer death. 20Pub. L. 84–1028 (1956). 21Pub. L. 99–399, § 1202, creating 18 U.S.C. § 2331. 

the President’s recent actions sending troops to Afghanistan, calling up the reserves, 

and deploying National Guard troops at airports. The Resolution is absolutely silent 

about any kind of military tribunal. It says nothing about the proper means of 

bringing to justice those involved in the September 11th terrorist attacks or other 

acts of terrorism. 

The President’s order also cites two sections of the Uniform Code of Military Justice, Sections 821 and 836 of Title 10, U.S. Code. But these sections do not authorize 

these secret military tribunals. Section 821 does not of itself authorize any military 

commission, but simply clarifies that if such a commission is otherwise authorized 

‘‘by statute or by the law of war,’’ then the existence of the courts-martial does not 

deprive military commissions of jurisdiction.16 Section 836 simply delegates to the 

President the authority to prescribe rules of evidence and procedure for courts-martial and military tribunals.17 Thus, if Congress had authorized a special military tribunal for international terrorists, Section 836 would authorize the President to create the rules for such a tribunal. But 836 does not itself authorize such a tribunal. 

The Executive Branch may be relying on a World War II case, ex pane Quirin, 

involving eight Nazi saboteurs who secretly entered the United States in order to 

destroy industrial and transportation infrastructure.18 But the comparison is inapt 

for several reasons. First, the statutory context could not be more starkly different. 

When the executive branch sought to try these Nazi saboteurs, it could point to statutes that specifically authorized trial by military commission of anyone who aided 

the enemy and of spies during wartime.19 Those statutes, Articles 81 and 82 of the 

Articles of War, were repealed in 1956 when Congress adopted the Uniform Code 

of Military Justice.20

Today, by contrast, the executive branch can point only to statutes by which Congress has authorized terrorists to be tried in the regular federal courts. In recent 

years, Congress has regularly expanded federal criminal court jurisdiction to cover 

more terrorist offenses. For example, the Omnibus Diplomatic Security and 

Antiterrorism Act of 1986 ensured that the federal criminal courts would have 

extraterritorial jurisdiction over terrorist acts abroad against U.S. nationals.21 The 

Antiterrorism and Effective Death Penalty Act of 1996 created a new offense for 

427

22Pub. L. 104–132, § 702, creating 18 U.S.C. § 2332b. 23Pub. L. 107–56, §§ 802, 803, 805, 808, amending 18 U.S.C. §§ 2331, 2339, 2339A, 233913. 24Proclamation 2561 (July 2, 1942), 7 Fed. Reg. 5101 (1942); Appointment of a Military Commission (July 2, 1942), 7 Fed. Reg. 5103 (1942). 25See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (striking down President 

Truman’s Executive Order taking possession of steel mills during the Korean War because Congress had refused to grant the President this authority). See also Little v. Barreme, 6 U.S. 170 

(1804). 

26 71 U.S. at 120–21. 

acts of terrorism transcending national boundaries.22 The USA PATRIOT Act of 

2001 further expands federal criminal prohibitions on terrorism.23

In addition, Congress had made a formal declaration of war by the time that 

President Roosevelt created the Quirin military commission.24 Congress’s declaration authorized a general war and provided Roosevelt with the full panoply of wartime powers available to a president. By contrast, currently Congress has authorized 

only a limited war against those who planned or aided the terrorist attacks on September 11. In a limited war, where Congress authorizes specific types of military 

action, the executive branch must confine its actions to those specifically authorized 

by Congress.25

It is also important to note the difference in scope between President Roosevelt’s order creating the military commission for the Nazi saboteurs, and President Bush’s order. While President Roosevelt had robust statutory authority to create a wideranging set of military tribunals for saboteurs and spies, he chose to create a single 

tribunal to deal with the eight specified saboteurs who were already in custody. On 

the other hand, President Bush, lacking any statutory authority, is attempting to 

create military commissions for unnamed and unnumbered defendants accused not 

just of particular crimes for which Congress has authorized military tribunals, or 

even for crimes against the law of war, but for any international terrorism against 

the United States. International terrorism against the United States does not necessarily constitute a violation of the law of war. Thus, President Bush’s order goes 

beyond the outer reaches of his constitutional authority. While the Roosevelt order 

in Quinn had a strong statutory basis, the Bush order on military commissions goes 

beyond his authority as President. 

Finally, I draw your attention to these words from the Supreme Court’s decision 

in ex pane Milligan, which can serve as an important guide in these difficult times:

The Constitution of the United States is a law for rulers and people, equally 

in war and in peace, and covers with the shield of its protection all classes 

of men, at all times, and under all circumstances. . . .[T]he government, 

within the Constitution, has all the powers granted to it, which are necessary to preserve its existence....26

In this time of uncertainty and fear, it is as important as ever for Congress to 

ensure that the executive branch abides by the constitutional limits on its authority.

Statement of The Federalist Society 

fNATIONAL SECURITY WHITE PAPERS

THE WAR ON TERRORISM: LAW ENFORCEMENT OR NATIONAL SECURITY? 

[The Federalist Society takes no position on particular legal or policy issues. The 

views expressed herein are those of the authors alone]

George Terwilliger—White & Case, Washington, D.C. served as Deputy Attorney General in the Bush I Administration. 

Theodore Cooperstein—‘‘Office of Theodore Cooperstein, Attorney at Law, 

Washington D.C., has served as Assistant General Counsel, Federal Bureau 

if Investigation 

Shawn Gunnarson—White & Case, Washington, D.C. 

Daniel Blumenthal—Kelley Drye & Warren, New York. The views expressed herein are those of the author alone and do not reflect the views 

of Kelleye Drye & Warren. 

Robert Parker—Paul Weiss Rifkind Wharton & Garrison, Washington, D.C.

The horrific events of September 11th were immediately labeled ‘‘acts of terrorism,’’ but as events unfolded, they were quickly revealed as ‘‘acts of war.’’ The 

anthrax attacks that followed were surely acts of terrorism, but not necessarily acts 

428

1 Bas v. Ting, 4 U.S. (4 Dall.) 37, 40 (1800) see (opinion of Washington, J.). 2For statutes on piracy, see 18 U.S.C. § 1651–1661. 3See ‘‘Diplomatic Security and Antiterrorism Act of 1986,’’ Pub. L. N. 99–399, 100 Stat. 853. 4For discussion of whether a formal declaration of war by Congress is required, an issue beyond the scope of this paper, see generally Bas v. Tingy, 4 U.S. 37 (4 Dall.) (1800) (opinion of 

Washington, J.); The Prize Cases, 67 U.S. (2 Black) 365 (1862). 5See Federalist No. 8. 

6See Federalist Nos. 23–24. 7See Federalist No. 51.

of war by a foreign belligerent. As of this writing, investigators have been pursuing 

the possibility that the anthrax attacks are acts of domestic terrorism with no organizational links to those who engaged in the acts of war on September 11th. Federal officials face the unprecedented situation of having to respond immediately to crisis events that are both war and crimes. This new paradigm of warfare 

has blurred the previously more-or-less clear line between national defense and law 

enforcement. And the idea of national defense is changing to encompass a broader 

range of threats than historically posed by a warring nation-state. 

Historically, ‘‘war’’ has been only between states. (‘‘Every contention by force between two nations, in external matters, under the authority of their respective governments.’’) 1 Except for civil wars, acts of individuals and groups not qualifying as 

states have been deemed crimes either against the law of a particular state or violators of the ‘‘law of nations,’’ e.g. piracy (much terrorism has been state-sponsored).2

This country’s initial legal response to terrorism in the 1980s was a law enforcement 

approach which extended the jurisdiction of the United States to criminal acts 

against Americans abroad.3

The realization, however, that non-state and clandestinely state sponsored groups 

now have the ability and willingness to employ means of mass destruction has dictated the recognition that states no longer have a monopoly on war. Therefore, it 

has become appropriate to use war powers against foreign terrorist organizations. 

Using those war powers against foreign terrorists operating within the United 

States calls for an understanding of when actions of force or terrorism by non-state 

groups should be treated pursuant to national security powers, rather than within 

the domain of law enforcement.4

The use of national security powers against groups of foreign belligerents found 

within the United States raises dangers which could result from militarizing the 

homeland.5 Nevertheless, as the Framers intended, the Constitution both gives the 

federal government all the powers necessary to defend the country,6 and also limits 

the possibilities for abuse of those powers through separation of powers and federalism.7 It is understandable that the initial response to the unprecedented attacks 

within the U.S. by foreign forces on September 11th emphasized centralized command and control. As we adjust to the new reality, an effective national security 

strategy requires a range of responses based on recognizing the relationship between: 

1) national security powers and law enforcement powers; 

2) the rights of citizens and non-citizens; and 

3) centralized and decentralized defenses. 

I. INTERNATIONAL TERRORISM IS A MATTER OF NATIONAL SECURITY, RATHER THAN

MERELY CRIMINAL LAW ENFORCEMENT

Debate about particular anti-terrorism measures often rests on an incomplete understanding of the constitutional principles involved as well as on an overjudicialization of political and policy issues. Our national leaders have a constitutional responsibility to secure the country from foreign threats, and the Framers of 

our Constitution often referred to this obligation during the Philadelphia convention, in The Federalist Papers, and elsewhere. Indeed, the Preamble to the Constitution makes this very point when it states that the Constitution was ordained and 

established to ‘‘insure domestic tranquility’’ and ‘‘provide for the common Defence.’’

In other words, we must not only account for the traditional rights that citizens

enjoy, but also the broad national security power that the Constitution grants to the 

government to take action against unlawful belligerents acting on U.S. soil. Resolution of the significant constitutional questions raised by measures to address the 

current terrorist threat thus requires a clear understanding of both the powers that 

the Constitution grants to the government when national security is at stake, and 

the circumstances in which the exercise of those powers do and do not infringe our 

civil liberties. This is consistent with how the Framers viewed our Constitutional 

system-namely, that structural issues are inextricably intertwined with questions 

relating to the protection of freedom. It is axiomatic that the federal government 

429

8Federalist No. 23.

9 Brown v. United States, 12 U.S. [8 Cranch] 110, 125–126 (1814). 10See United States v. Curtis-Wright Export Corp., 299 U.S. 304, 315–19 (1936). 11 Curtiss-Wright Export Corp., 299 U.S. at 315. 12 Brian L. Porto, Annotation, Construction And Application Of Posse Comitatus Act (18 U.S. 

C.A. § 1385), And Similar Predecessor Provisions, Restricting Use Of United States Army And 

Air Force To Execute Laws, 141 A. L. R. Fed. 271 (1997). Use of troops domestically for purposes 

other than law enforcement would be a different matter. For that issue, see the briefing paper 

prepared by Paul Stevens that appears on our website, http://www.fed—soc.org 13 ‘‘Posse Comitatus’’ means ‘‘power of the country.’’ 14 18 U.S.C. § 1385. 15See United States v. Morrison, 120 S. Ct. 1740, 1754 (quoting United States v. Lopez, 514 

U.S. 549, 566 (1995) (‘‘[t]he Constitution withhold[s] from Congress a plenary police power’’). 16See McCulloch v. Maryland. U.S. (4 Wheat.) 316 (1819). 

has all the constitutional power necessary to defend the nation, whether the threat 

comes from foreign attack or from the breakdown of internal order. As Alexander 

Hamilton wrote in Federalist No. 23, the powers of the federal government to provide for the common defense are complete.

These powers ought to exist without limitation: Because it is impossible to 

foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy 

them. The circumstances that endanger the safety of nations are infinite; 

and for this reason no constitutional shackles can wisely be imposed on the 

power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to 

be under the direction of the same councils, which are appointed to preside 

over the common defense.

This ‘‘truth,’’ according to Hamilton,

rests upon axioms as simple as they are universal. The means ought to be 

proportioned to the end; the persons, from whose agency the attainment of 

any end is expected, ought to possess the means by which, it is to be attained.8

The Supreme Court has confirmed Hamilton’s view that the Constitution confers 

on the federal government an ‘‘independent substantive power’’ with respect to national security, and specifically with respect to the ‘‘persons or property of [an] 

enemy found, at the time, within the territory’’ of the United States.9 Providing for 

the security of one’s country is an inherent feature of national sovereignty, and the 

Constitution expresses or confirms that fairly obvious point by vesting in a President the general Executive power under Article Two.10

In previous wars, except the Civil War, a fairly discernable line has existed between external defense and internal police. Thus, the Supreme Court has distinguished ‘‘between the powers of the federal government in respect to foreign or external affairs and those in respect of domestic or internal affairs.’’ 11 This same division has passed a law that limited presidential use of military forces for domestic 

law enforcement to situations in which ordering means of law enforcement could not 

restore order.12 During the Civil War and Reconstruction, Congress expanded the 

internal use of military forces. In 1878, after the domestic crisis had passed, Congress enacted the ‘‘Posse Comitatus Act,’’ 13 which prohibits the use of the military 

(expressly, just the Army and Air Force) to execute the laws of the United States, 

the states or the territories, except as specifically provided.14

The federal government does have law enforcement powers, but those powers 

have limits. In particular, the federal government has no general police power.15

Congress must find the source for enacting criminal law either in particular enumerated powers or in the means necessary to implement those powers.16

In matters of national security, on the other hand, the powers of the federal government are broader. The Constitution grants to the Executive and Legislative 

Branches, as the preamble announces, specific powers to ‘‘insure domestic Tranquility and provide for the common Defence.’’ Most notable and relevant for present 

purposes is the power of the Congress under Article I, section 8 to declare war, but 

also its power to ‘‘define and punish. . .Offenses against the Law of Nations’’ and 

to ‘‘make Rules concerning Captures on Land and Water.’’ Likewise, the role of the 

President, under Article II, section 2, as the ‘‘Commander in Chief of the Army and 

the Navy of the United States, and of the Militia of the several States, when called 

into the actual Service of the United States’’ reflects the Constitution’s grant of authority to the Executive Branch to address threats to national security independent 

of the President’s separate role as chief magistrate and prosecutor of criminal laws. 

430

17 In re Yamashita, 327 U.S. 1, 9 (1946); accord Johnson v. Eisentrager, 339 U.S. 763, 774– 75 (1950) (‘‘Executive power over enemy aliens, undelayed and unhampered by litigation, has 

been deemed throughout our history, essential to war–time security’’); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) (‘‘Of course the power to declare war involves the power to 

prosecute it by all means and in any manner in which war may legitimately be prosecuted. It 

therefore includes the right to seize and confiscate all property of an enemy and to dispose of 

it at the will of the captor’’). 18 Ex Parte Quirin, 317 U.S. 1 (1942). 19 Id. at 26. 20 Id. at 28–29. 21Quirin, 317 U.S. at 30–31. 22 Id. at 45; see also Yamashita, 327 U.S. at 23 (rejecting a Fifth Amendment challenge to 

the introduction of hearsay evidence in a prosecution before a military commission; ‘‘[T]he commission’s rulings on evidence and on the mode of conducting these proceedings against petitioner are not reviewable by the courts. . . .From this viewpoint it is unnecessary to consider 

what, in other situations, the Fifth Amendment might require[.])’’ 23Quirin, 317 U.S. at 37. 

This constitutional authority to provide for the national defense and to protect national security in the face of enemy attack extends not only to the conduct of war 

by traditional military means, but also to the treatment of individuals who prosecute the attack on the enemy’s behalf. ‘‘An important incident to the conduct of war 

is the adoption of measures by the military commander, not only to repel and defeat 

the enemy, but to seize and subject to disciplinary measures those enemies who, in 

their attempt to thwart or impede our military effort, have violated the law of 

war.’’ 17

The authority that the Constitution confers on the federal government to prosecute the enemy by all appropriate means applies to the enemy found at home as 

well as those encountered abroad.18 Quirin concerned a group of saboteurs who were 

landed by German U-boats on U.S. beaches during World War II. Their assignment 

from the German military authorities was to destroy military targets and war-production facilities on the U.S. home front. All of the saboteurs were Germans except 

one, Haupt, who claimed to be a naturalized U.S. citizen. After capture by the FBI, 

the belligerents were placed in military custody. Pursuant to an Executive order, 

they were tried by a military commission, which found them all guilty and sentenced them to death. They then filed petitions for writs of habeas corpus, challenging the authority of the military tribunal, and the tribunal’s denial to them during its proceedings of the Constitutional rights specified in Article III and the Fifth 

and Sixth Amendments. 

The Supreme Court upheld the military commission’s authority. The Court concluded that the President, as Commander-in-Chief, has the power to enforce all laws 

relating to the conduct of war, ‘‘and to carry into effect. . .all laws defining and 

punishing offenses against the law of nations including those which pertain to the 

conduct of war.’’ 19 This power, the Court held, includes the authority ‘‘to seize and 

subject to disciplinary measures those enemies who in their attempt to thwart or 

impede our military effort have violated the law of war.’’ 20

The Court likewise rejected the would-be saboteurs’ claim to the traditional constitutional rights enjoyed by an accused in the criminal justice system. The Court 

concluded, first, that the saboteurs were not criminal defendants, but rather were 

unlawful belligerents accused of violating the laws of war. ‘‘[A]n enemy combatant 

who without uniform comes secretly through the lines for the purpose of waging war 

by destruction of life or property, is familiar examples of belligerents who are generally deemed. . .to be offenders against the law of war subject to trial and punishment by military tribunals.’’ 21

The Court next rejected the unlawful combatants’ claim that, having been captured by FBI agents on U.S. soil, they enjoyed constitutional rights under Article 

III and the Fifth and Sixth Amendments. ‘‘We conclude that the Fifth and Sixth 

Amendments did not restrict whatever authority was conferred by the Constitution 

to try offenses against the law of war by military commission, and that petitioners, 

charged with such an offense not required to be tried by jury at common law, were 

lawfully placed on trial by the Commission without a jury.’’ 22

Finally, the Court in Quirin readily rejected Haupt’s claim of constitutional rights 

by virtue of his purported U.S. citizenship. U.S. citizenship, the Court held, ‘‘does 

not relieve him from the consequences of a belligerency which is unlawful because 

in violation of the law of war.’’ 23 By virtue of his allegiance to a foreign enemy and 

his taking up arms on behalf of that enemy, therefore, Haupt was subject to military punishment, rather than criminal justice. 

This distinction between an unlawful belligerent and a traitorous civilian is wellgrounded in constitutional precedent, and can be viewed as the definitive boundary 

between the government’s national security power and its law enforcement authorVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00066 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
431

24 71 U.S. (4 Wall.) 2 (1866). 25The majority refused to consider the scope of the military tribunal’s authority in this context, although the minority readily acknowledged the authority of such a tribunal that is ‘‘exercised in time of invasion or insurrection within the limits of the United States. . .when the public danger requires its exercise.’’ 71 U.S. at 121 (majority) & 142 (opinion of Taney, C.J. and 

Wayne, Swayne and Miller, J).). 26 Ex Parte Milligan, 71 U.S. at 121–22. 27See Quirin, 317 U.S. at 45. (Milligan involved a citizen who ‘‘was not an enemy belligerent. . .subject to the penalties imposed upon unlawful belligerents. . . .[Milligan was not] a 

part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to 

the law of war save as. . .martial law might be constitutionally established’’). 28The courts have also made clear that they stand ready to patrol the boundary between the 

exercise of legitimate national security powers directed to unlawful belligerents and the illegitimate use of that authority when directed at citizen civilians. In Quirin, and on two occasions 

since Quirin, the Supreme Court has recognized its authority to consider habeas corpus petitions 

filed by enemy aliens who claim they are wrongly held in military custody. In Yamashita, the 

Court held that Congress ‘‘has not withdrawn, and the Executive branch of the Government 

could not, unless there was suspension of the writ, withdraw from the courts the duty and power 

to make such inquiry into the authority of the commission as may be made by habeas corpus.’’

327 U.S. at 9. In Johnson v. Eisentrager, the Court pointed out that, despite its rulings in 

Quirin and Yamashita upholding the authority of the military commissions, in each case the 

petitioners had the benefit of a hearing at which an Article III court considered their applications and provided them with an opportunity to present reasons for their release from military 

jurisdiction. 339 U.S. at 780–81. 29 Reid v. Covert, 354 U.S. 1 (1957); Best v. United States, 184 F.2d 131,138 (1st Cir. 1950), 

cert. denied, 340 U.S. 939 (1951); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 157, 

(D.D.C. 1976)(‘‘There is no question, of course, that the Constitution applies to actions by the 

United States officials taken against American citizens overseas.’’). 

ity. In Ex Parte Milligan,24 the Court considered the conviction by a military tribunal of a U.S. citizen, resident in Indiana, who was accused of conspiring to aid 

the cause of the Confederacy, then at war with the United States. The Court unanimously overturned the conviction. Although the Court divided on the question of the 

tribunal’s authority,25 it concluded that ‘‘no usage of war could sanction a military 

trial there for any offence whatever of a citizen in civil life, in no wise connected 

with the military service.’’ 26 The Court in Quirin thus recognized that Milligan presented a different case, and raised different constitutional questions, than did the 

case before it.27 We can draw from Quirin and Milligan, therefore, a clear distinction between a belligerent who threatens the national security at the service of a 

foreign enemy, and a civilian whose crime—although it may involve aiding and 

abetting an enemy in time of war—is subject to the jurisdiction of traditional law 

enforcement (rather than military) authority. The latter, but not the former, thus 

enjoys the constitutional protections of an accused, though fraudulent acquisition of 

citizenship would not afford a belligerent these constitutional protections (a point 

that is further discussed in the next section).28

The assessment of anti-terrorist measures, both those already enacted and those 

considered for future implementation, should not be examined exclusively through 

the lens of the government’s traditional law enforcement powers. To the extent that 

anti-terrorist measures are directed at protecting our nation’s security from those 

in the active service of our enemies, then the government may exercise a constitutional authority that is separate from and independent of its law enforcement powers. The exercise of that authority is not an infringement on the constitutional 

rights of civilians under Article III or the Fifth and Sixth Amendments, but a vindication of the citizens’ collective grant of the powers of defense to the national government. 

II. MEANINGFUL DISTINCTIONS EXIST BETWEEN CITIZENS AND NON-CITIZENS IN THE

LAW OF THE CONSTITUTION

A. Citizens at Home Enjoy the Broadest Constitutional Protections Against the 

Federal Government 

An American citizen or national is entitled as a constituent of the American polity 

to the protective restrictions the Constitution imposes on the United States government. Law enforcement accordingly is held to requirements of reasonableness and 

probable cause in performing searches and seizures against United States nationals.29

432

30 United States v. Montoya de Hernandez, 473 U.S. 532, 537 (1985)(‘‘since the founding of our 

Republic, Congress has the Executive plenary authority to conduct searches and seizures at the 

border, without probable cause or warrant.’’) 31 Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) (citing Chae Chan Png v. 

United States, 130 U.S. 581, 603–04). 32 Id. at 272–73 33 Best, 184 F.2d at 140–41 (warrantless search by U.S. Army upheld in Occupation Zone of 

postwar Austria). 34 United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000) (Applying Fourth Amendment to overseas search of American citizen, declining to apply exclusionary rule). 35 Rumsfeld, 410 F. Supp. at 154 (‘‘The fourth amendment does apply to actions of foreign officials if United States officials participated in those actions so to convert them into joint ventures 

between the Untied States and the foreign officials’’) (citations omitted); see also Stonehill v. 

United States, 405 F.2d 738, 743–44 (9th Cir. 1968). 36 Rumsfeld, 410 F. Supp. at 152. 37 Verdugo-Urquidez, 494 U.S. at 266. 38 Id. at 269; see Johnson v. Eisentrager, 339 U.S. 763 (1950). 39 Eisentrager, 339 U.S. at 774–75. 40 494 U.S. 259 (1992). 

At the international borders or their functional equivalents, Executive power to 

stop and search both citizens and aliens is plenary.30 ‘‘It is undoubtedly within the 

power of the Federal Government to exclude aliens from the country.’’ 31 The plenary power stems from the interest of national self-protection is available not only 

at the formal border crossing, but also at functional equivalents such as international airports, or crossroads within a ‘reasonable’ distance from the border.32

The United States Government must also follow established procedures and afford 

constitutional due process when trying (civilian) U.S. citizens abroad. Yet even this 

rule need not be absolute. For instance, in occupied military zones the particular 

application of the War Power may be constitutionally permitted.33 More recently, a 

District Court has ruled that the al-Qaeda terrorist network qualifies as a ‘‘foreign 

power’’ so as to permit the Foreign Intelligence Exception to the Fourth Amendment 

warrant requirement and allow the overseas search of an American working for that 

foreign power.34

Moreover, foreign governments are not bound by the Constitution unless there is 

an active collaboration with United States agencies. Acts of a foreign government 

within its own territory against United States citizens are not subject to the limitations of the Constitution.35 Accordingly, United States officials and agencies are free 

to accept and make use of any truly independent assistance or information offered 

by other nations without regard to the methods or sources by which it was obtained. 

B. Non-Citizens Enjoy Lesser Protections Under the Constitution 

When operations focus on aliens abroad, the legal constraint under the Constitution is the least certain. The citizenship status of the person significantlyaffects the 

obligations and restrictions of the United States actors towards individuals overseas. In contrast to the alien lawfully resident in the United States, ‘‘there are different expectations of treatment than when a non-resident alien is simply affected 

by United States officials abroad. In the former instances, the United States has the 

power to, or has in fact imposed the framework of its government process on the 

non-resident alien. . . .[But when the alien] is harmed in his own country, he cannot and should not expect entitlement to the advantage of a United States court.’’ 36

The ‘‘purpose of the Fourth Amendment was to protect the people of the United 

States against arbitrary action by their own Government; it was never suggested 

that the provision was intended to restrain the actions of the Federal Government 

against aliens outside of the United States territory.’’ 37

The Supreme Court has similarly ‘‘rejected the claim that aliens are entitled to 

Fifth Amendment rights outside the sovereign territory of the United States.’’ 38 In 

times of war, domestic application of the Fifth Amendment to , nonresident aliens 

is not presumed: ‘‘Executive power over enemy aliens, undelayed and unhampered 

by litigation, has been deemed, throughout our history, essential to war-time security. . . .The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a ‘declared war’ exists.’’ 39

The controlling precedent concerning the Fourth Amendment’s application to 

aliens outside the United States is United States v. Verdugo-Urquidez.40 VerdugoUrquidez was indicted on drug charges under United States law, when he was a 

Mexican citizen residing in Mexico. Mexican police officers delivered VerdugoUrquidez to the United States border, where he was arrested and charged. Agents 

of the U.S. Drug Enforcement Administration (DEA), with the permission and assistance of the Mexican federal police, conducted searches of Verdugo-Urquidez’s two 

433

41 494 U.S. at 263. 42 United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988). 43 494 U.S. at 274. 44 494 U.S. at 283 n.7, 291 n.11. 45 Id. at 264; Id. at 278 (Kennedy, J., concurring). 46 Id. at 274; Id. at 279 (Stevens, J., concurring). 47 Id. at 273. This reasoning also militates against application of constitutional due process 

protections and other Bill of Rights provisions to aliens who are abroad. 48 Id. at 292. 49 49. Id. 50 United States v. Alvarez-Machain, 504 U.S. 655, 661 (1992) (citing to Frisbie v. Collins, 342 

U.S. 519 (1952). 51Frisbie v. Collins, 342 U.S. 519. 52 Ker v. Illinois, 119 U.S. 436 (1886). 53 504 U.S. 655 (1992). 

houses in Mexico, obtaining documents evidencing Verdugo-Urquidez’s drug smuggling. 

On Verdugo-Urquidez’s motion to suppress the documents, the District Court 

ruled the Fourth Amendment applied to the searches conducted in Mexico, and that 

the DEA agents had no cause to conduct those searches without a warrant.41 The 

Court of Appeals for the Ninth Circuit affirmed, ruling that the searches were subject to the Fourth Amendment, and therefore unlawful without a warrant or exigent 

circumstances.42

The Supreme Court reversed, holding that the Fourth Amendment does not apply 

to the search and seizure of a nonresident alien’s property outside of the United 

States.43 Both the majority opinion and the dissent recognized that the Fourth 

Amendment applied to protect American citizens, without regard to territorial restriction.44 While other provisions of the Bill of Rights, such as the Fifth or Sixth 

Amendments, establish procedural trial rights which inure to a person who becomes 

a criminal defendant in United States custody, the Fourth Amendment’s restrictions 

on search and seizure protect a right of ‘‘the people’’ as opposed to any person or 

any accused. A search and seizure can violate these restrictions prior to, or even 

absent, a trial or conviction.45 It therefore made no difference to a Fourth Amendment analysis, despite the dissent’s protest to the contrary, whether VerdugoUrquidez was within or without the United States, or in custody, at the time the 

agents searched the Mexican properties. A judicial warrant would have had null effect outside the United States.46 But a requirement to obtain a warrant, implied by 

application of the Fourth Amendment, would have pernicious effect on United 

States operations overseas, including, the Court feared, military operations.47 The 

Supreme Court accordingly reversed the two lower courts’ opinions. 

The Supreme Court dissent noted that ‘‘non-law enforcement activities, not directed against enemy aliens in wartime but nevertheless implicating national security’’ 48 should not suffer impairment under the Fourth Amendment. ‘‘Many situations involving sensitive operations abroad likely would involve exigent circumstances’’ and thus not need a warrant.49 Thus both the dissent and the majority 

in Verdugo-Urquidez leave open the possibility that intelligence collection and operations overseas can proceed without constitutional burden, on the significant, if 

unstated, assumption that the intent remains unchanged throughout the investigation to collect information solely for intelligence purposes. But the dissent’s analysis 

seems necessarily to rely on the continued dichotomy between intelligence and law 

enforcement in distinguishing the Fourth Amendment’s applicability to either function. In today’s world, where the line between crime and war has been blurred by 

mass murder of civilians in attacks upon nations by unlawful belligerents, the dichotomy between gathering ‘‘intelligence’’ in support of national defense and obtaining evidence in support of law enforcement is less clear than the dissent might have 

supposed. 

Similar considerations govern seizures, as well as searches, of aliens abroad. Since 

the Nineteenth Century it has been held that United States courts may exercise 

personal jurisdiction over any one properly charged and present before that court, 

regardless of how he found his way to that court. ‘‘[D]ue process of law is satisfied 

when one present in court is convicted of crime after having been fairly apprized 

[sic] of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.’’ 50 The defendant can legally be tried even after plain 

abduction brought him to the court, whether across interstate lines,51 or across 

international borders.52 The Supreme Court most recently affirmed this principle in 

United States v. Alvarez-Machain.53 While the international application of this principle is subject to the strictures of any given extradition treaty between the United 

States and the alien’s nation of citizenship, under customary international law pracVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00069 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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54 504 U.S. at 667. 55 394 U.S. at 270–71 56 494 U.S. 265 57 Compare Bridges v. Wilson, 326 U.S. 135 (1945) (resident alien has first amendment rights) 

with U.S. ex. Rel. Turner v. Williams, 194 U.S. 229 (1904) (excludable alien does not have First 

Amendment rights). 58Landon v. Plasencia, 459 U.S. 21, 32 (1982). 59Laurie Mylroie, ‘‘The World Trade Center Bomb: Who is Ramzi Yousef? And Why it Matters,’’ 42 Nat’l Int. 3 (1995). 60 Id. 61 Ed Timms, ‘‘Critics Say Visa System Was Help to Hijackers,’’ Dallas Morning News, Sep. 

15, 2001, at 25A. 62Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 223 (1953) (Jackson, J., dissenting). 63 8 U.S.C. at § 1227(a)(3)(C). 64 Id. at § 1227(a)(3)(D). 

tice, any individual rights under an extradition treaty are solely derivative of the 

nation’s rights. Any government must specifically object in accordance with the 

terms of the extradition treaty, for only governments can invoke such treaties, and 

the rights under them can be and frequently are waived.54

This does not mean that aliens would be devoid of all legal protection or safeguard. The Court in Verdugo-Urquidez left the door open to constitutional claims 

by aliens in this country.55 In addition, where the Constitution and federal statutes 

are otherwise silent, aliens may resort to relevant international agreements such extradition treaties, treaties of friendship, commerce and navigation, tax treaties, and 

mutual legal assistance treaties, to the extent they are self-executing. 

In conclusion, under Verdugo-Urquidez, the Fourth Amendment does not operate 

to protect individuals; rather it operates to protect ‘‘the class of persons who are 

part of a national community or who have otherwise developed sufficient connection 

with the country to be considered part of that community.’’ 56 The farther an individual is removed from the ‘‘community,’’ the less claim he has to constitutional protection.57 Accordingly, it would be reasonable to conclude that an unlawful belligerent—even within the United States (and certainly outside the United States)—has 

by taking up arms against the United States so far removed himself from the national community as to forfeit Fourth Amendment rights. 

C. Citizenship Procured by Fraud is Void Ab Initio and Provides No Safe Harbor 

‘‘[A]dmission to the United States [is] a privilege and [an alien] has no constitutional rights regarding his application, for the power to admit or exclude aliens is 

a sovereign prerogative.’’ 58 Congress and the Executive have clear legal powers to 

exclude terrorists, to remove them if they get inside our borders, and to revoke their 

citizenship if that citizenship was based on fraud. 

Other aspects of this paper make clear that the Constitution confers ample powers on the President and Congress to defend the nation from international terrorists 

on U.S. soil. This portion addresses why aliens who obtain their immigration status 

by fraud should be deemed without lawful status and, therefore, not entitled to the 

full panoply of constitutional protections accorded to United States citizens. 

Terrorists frequently rely on deception and outright fraud to obtain the immigration status that allows them to enter or remain in the U.S. Ramzi Yousef, widely 

regarded as the mastermind behind the first World Trade Center bombing in February 1993, had been in official custody the previous September when he landed 

without a visa at JFK Airport.59 After being only ‘‘briefly detained,’’ he was released 

and ‘‘granted asylum pending a hearing.’’ 60 Mir Amal Kasi, convicted of murdering 

two CIA employees outside the agency’s headquarters in Langley, Virginia, got his 

visa based on false statements.61

In responding to the immediate threats posed by international terrorism, the wise 

words of Justice Robert Jackson are particularly fitting: ‘‘[T]he underlying consideration is the power of our system of government to defend itself, and changing strategy of attack by infiltration may be met with changed tactics of defense.’’ 62

Preventing abuse of immigration laws that are intended to welcome lawful visitors and emigres and exclude terrorists is one important step in the war against 

international terrorism. Congress has made clear that aliens seeking entry or citizenship must tell the truth. An alien who lies to obtain citizenship or favorable immigration status does not deserve to remain in this country. Thus, Congress has 

provided that a resident alien convicted of fraud on a visa application is deportable.63 Falsely claiming to be a citizen likewise renders a person deportable.64 And 

Congress has specifically directed the Executive to revoke the citizenship of any natVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00070 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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65 Id. at § 1451(x). 66 Cf. Restatement (Second) of Torts § 549, cmt. g (1976). 67See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). 68 Id. 69Landon v. Plasencia, 459 U.S. 21, 32 (1982) (‘‘an alien seeking initial admission to the 

United States requests a privilege and has no constitutional rights regarding his application....’’). 70 Cf. Leng May Ma v. Barber, 357 U.S. 185, 187–88 (1958). 71 Kaplan v. Tod, 267 U.S. 228, 230 (1925) (Holmes, J.). 72Fedorenko v. United States, 449 U.S. 490, 506 (1981). 73 Id. at 517. 74 Id. 75Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). 76See Wong Wing v. United States, 163 U.S. 228, 238 (1896). 77See Landon v. Plasencia, 459 U.S. 21, 32–34 (1982). 

uralized citizen who procures citizenship by ‘‘concealment of a material fact or by 

willful misrepresentation.’’ 65

These rules are obviously fair. But what constitutional protection should be accorded an alien who has procured his presence in the United States through fraud 

or other unlawful act? The law generally denies the benefit of a transaction to one 

who procured that transaction by fraud.66 Moreover, fraudulently obtaining immigration status or citizenship is no garden-variety fraud. It undermines the social 

compact, the foundation of our legal system, by falsely claiming to have entered it. 

Even the most ardent civil libertarian would agree that the law cannot be permitted 

to reward deceit and fraud. An alien who lies and cheats to enter this country simply does not deserve the same legal protections as do the millions of immigrants and 

visitors who obtained their status lawfully. Alien terrorists and suspected terrorists 

who claim constitutional protections against searches, detention and other anti-terror measures should first have their immigration status examined. If that status 

was obtained by fraud, misrepresentation or other unlawful means, then it should 

be deemed void ab initio. Such an alien should be treated under the law as if he 

never was lawfully admitted to the United States—because in a very real sense he 

was not. 

Supreme Court decisions construing congressional mandates in this area leave no 

doubt that the Executive possesses ample powers to limit the rights of aliens who 

obtain citizenship or immigration status through fraud. Generally, the power to exclude aliens—including foreign terrorists and their supporters—falls well within the 

power of Congress and the Executive.67 Because the power to exclude is ‘‘a fundamental sovereign attribute,’’ 68 aliens initially seeking entry into this country lack 

even the right to due process.69

What process is due an alien who enters this country or obtains citizenship 

through fraud? Such a person should have no greater claim to procedural protections than an alien paroled into the United States pending a hearing on the issue 

of admissibility.70 Such an alien ought to be ‘‘regarded as stopped at the boundary 

line and kept there unless and until her right to enter should be declared.’’ 71

When a naturalized citizen has committed fraud to obtain citizenship the Court 

has been similarly deferential to Congress, hewing to the rule of ‘‘strict compliance 

with all the congressionally imposed prerequisites to the acquisition of citizenship.’’ 72 In Fedorenko it held that federal courts ‘‘lack equitable discretion to refrain 

from entering a judgment of denaturalization against a naturalized citizen whose 

citizenship was procured illegally or by willful misrepresentation of material 

facts.’’ 73 Indeed, the Court has gone out of its way to reject ‘‘lower court efforts to 

moderate or otherwise avoid the statutory mandate of Congress in denaturalization 

proceedings.’’ 74 A naturalized citizen subject to a denaturalization proceeding is entitled to due process. ‘‘[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of 

fairness encompassed in due process of law.’’ 75 Similar due process requirements 

apply to deportation proceedings,76 although what process is due may vary with the 

circumstances.77

An alien who procures citizenship or immigration status through fraud presents 

a special circumstance, for which the narrowest range of due process protections 

ought to apply. Fair procedures should be designed for the limited purpose of determining whether an alien accused of committing fraud actually did so. An affirmative 

determination would cause the alien to revert by operation of law to his former nonstatus; he would then not enjoy the full array of constitutional protections extended 

to citizens and those with lawfully obtained immigration status. Defrauding the 

436

78See Kaplan v. Tod, at 267 U.S. at 230. 79P.L. 107–56 (Oct. 26, 2001), 80 Id. at § 412(x)(1). 81 Id. at § 412(x)(3), 82 Id. at § 412(x)(5). 83 Id. at § 412(x)(6), 84 Id. 85 Id. at § 412(x)(7). 86 Id. 87 Id. at § 412(b)(1), 88 Id. at § 412(b)(3). 89 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). 90 Id. 91 Id. at 271. 92 Id. (emphasis added) 93Matthews v. Diaz, 426 U.S. 67, 79–80 (1976). 

country in order to enter it makes an alien indistinguishable from those paroled 

aliens who have ‘‘gained no foothold in the United States.’’ 78

Treating aliens who procure immigration status or citizenship through fraud as 

if they were excludable aliens would have important implications for the war on 

international terrorism. 

First, this ‘‘entry fiction’’ supports Congress’s recent grant of authority to detain 

terrorists and terrorist suspects. Under the USA PATRIOT Act,79 the Attorney General must detain any alien certified as a suspected terrorist.80 The Attorney General 

may make this certification if he has ‘‘reasonable grounds to believe,’’ 81 that an 

alien has committed specified forbidden acts associated with terrorism. To be sure, 

certain administrative and judicial safeguards apply. The Act requires the Attorney 

General to begin removal proceedings, charge the alien with a crime, or release the 

alien within ‘‘seven days after the commencement of such detention.’’ 82 If an alien 

is held solely because he is certified by the Attorney General under the Act and his 

removal is ‘‘unlikely in the foreseeable future,’’ 83 the Attorney General is authorized 

to continue detaining him for six-month intervals ‘‘only if the release of the alien 

will threaten the national security of the United States or the safety of the community or any person.’’ 84 Furthermore, the Act directs the Attorney General to review 

the certification of an alien as a suspected terrorist every six months.85 The alien 

may submit a written request for reconsideration every six months, and such a request for reconsideration may include ‘‘documents or other evidence in support of 

that request.’’ 86 Judicial review is available only in habeas corpus proceedings,87

and the only Court of Appeals authorized to hear appeals under the Act is the D.C. 

Circuit.88 Congress has deemed these procedural safeguards to be all the process 

due to suspected alien terrorists. For those of that group who procured their immigration status or citizenship through fraud, this may be more process than is constitutionally required. 

Second, regarding those who obtain immigration status or citizenship as excludable aliens can enhance the government’s power to investigate terrorist cells in this 

country. The Fourth Amendment, which protects ‘‘the people’’ from ‘‘unreasonable 

searches and seizures,’’ has been given a narrower compass when applied to aliens 

than to citizens. As the Supreme Court has noted,‘‘ ‘the people’ seems to have been 

a term of art employed in select parts of the Constitution.’’ 89 In particular, the 

Court found that the language ‘‘suggests that ‘the people’ protected by the Fourth 

Amendment, and by the First and Second Amendments, and to whom rights and 

powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.’’ 90

Given this interpretation, the Court held that ‘‘aliens receive constitutional protections when they have come within the territory of the United States and developed 

substantial connections with this country.’’ 91

Verdugo supports the proposition that an alien who procures citizenship or immigration status through fraud is not entitled to Fourth Amendment rights. A person 

who lies to gain entry to our nation should not be deemed to have established ‘‘substantial connections with this country.’’ 92 To suggest the contrary is inconsistent 

with common sense and the judicial respect for the congressional determination that 

aliens who lie to gain entry or citizenship should be removed. No one, simply by 

dint of arriving at our shores and remaining undetected for a period of time precisely because of his fraud, should be rewarded by enjoying the same rights as those 

who come here lawfully. Treating immigration cheats differently is consistent with 

the principle that immigration law in general consists of rules that ‘‘would be unacceptable if applied to citizens.’’ 93

437

94 Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 32 (2d Cir. 1997). 95 Restatement (Second) of Contracts § 163, cmt. a (1981). 96 . . . .the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate governments. Hence a double security arises to the rights of the people. The different governments 

will control each other; at the same time that each will be controlled by itself. 

Federalist No. 51 (emphasis added). 

97 USA PATRIOT Act of 2001, Pub. L. No.107–56. 98See Federalist No. 70. 99See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (holding President Truman’s order to seize steel plants in support of the Korean Conflict an unconstitutional violation 

of separation of powers, not justified by his powers as Commander-in-Chief). 

It is axiomatic that a contract is void ab initio where there is ‘‘fraud in the execution,’’ 94 meaning that one party misrepresents an agreement’s ‘‘essential terms.’’ 95

An alien who falsely claims the right to enter the United States to study, perhaps 

at a flight school, and then commits terrorist acts misrepresents the ‘‘essential 

terms’’ of the agreement between him and this country. It follows that the agreement to let him enter is voId. He had no constitutional rights before entry. Should 

the law be construed to give him the benefit of his fraudulent bargain by extending 

him constitutional protections anyway? 

III. NOT ALL FORMS OF CENTRALIZATION INCREASE SECURITY; DECENTRALIZATION CAN

PROTECT BOTH SECURITY AND LIBERTY

As horrific as the events of September 11th were, the damage to the United States 

was not catastrophic. The unprecedented loss of life and property was actually crippling only within limited geographic areas. Certainly, the resulting economic damages have been felt nationwide, as measured in the decline of stock prices, employment rates, airline passenger traffic, consumer confidence, and corporate profits. 

These economic damages have been driven by fear of uncertainty and vulnerability. 

As tremendous and widespread as these damages have been, the enemy nevertheless has not inflicted physical damage on our far-flung defense or production capabilities. Indeed, the decentralization of people, production capabilities, and defenses 

across a large land mass minimizes the potential for physical damages from terrorism. 

Fear, more so than physical damages, is the threat. This fear is prompted by localized concentration of populations and nationwide interconnectedness. Populations 

concentrate in cities, buildings, subways, stadiums, and aircraft and dispersed populations are interconnected through the mail system, water supplies, the food supply, 

the blood supply, and the financial system. Terrorism and the fear it generates have 

renewed interest in the quarantine, curfew, and the martial law powers of the 

states. Along with the powers of the federal government, these local powers remain 

an important feature of the federal system for responding to new forms of violence 

and threats to public health, as well as the fear of both. 

Although more centralized than a century ago, the United States is still not a centralized state like France. Moreover, as long as the constitutional structure remains 

intact, it cannot become a completely centralized state. Efficiency experts may think 

that fifty states represent much wasteful duplication of governmental services. Security experts, on the other hand, can appreciate the value of so much redundancy. 

With fifty states, each having its own government, its own law enforcement, its own 

emergency response resources, the federal system as designed by the Framers gives 

priority to security and liberty over efficiency.96

A. Security and Liberty Need Not Be in Conflict 

Debate over the recently enacted USA PATRIOT Act 97 was typically framed in 

libertarian terms as a contest between liberty and security. It has been difficult for 

many Americans (especially lawyers) to understand that security and liberty can be 

hand-maidens. Liberty and security naturally conflict in a centralized state; they 

need not and should not in a decentralized state such as the United States. When 

the Framers created a strong Executive, they faced the charge that the President’s 

powers—said to be equal to those of a king—posed a threat to liberty. They responded that an energetic Executive is essential to the defense of the people’s liberty,98 a view which has been confirmed by history and the opinion of the American 

people. Presidents have never been more esteemed by the American people than 

when, acting as Commander-in-Chief, they defend individual liberty by defending 

the nation’s security. 

The President’s powers as Commander-in-Chief, standing alone, do not authorize 

him to take action within the United States.99 Acting under Congress’ war powers, 

438

100See n. 3, Part I. 101See Woods v. Miller Co., 333 U.S. 138 (1948) (upholding national rent controls under the 

war power even though the Housing and Rent Act of 1947 was adopted after the ‘‘cessation of 

hostilities’’ (although technically a state of war still existed) in World War II). 102See Korematsu v. United States, 323 U.S. 214 (1944) (upholding a conviction for violating 

a military order during World War II which imposed curfews, detention in relocation centers, 

and exclusion from certain areas on the West Coast on Japanese Americans.) 103See USA PATRIOT Act of 2001, Pub. L. No. 107–56, §§ 206, 207 compared to Countering 

the Changing Threat of International Terrorism: Report of The National Commission on Terrorism: Hearing Before the S. Comm. on Foreign Relations, 106th Cong. 8 (2000) (discussing 

the Foreign Intelligence Surveillance Act of 1978) and USA PATRIOT Act of 2001, Pub. L. No. 

107–56, § 416 compared to Countering the Changing Threat of International Terrorism: Report 

of The National Commission on Terrorism: Hearing Before the S. Comm. on Foreign Relations, 

106th Cong. 22 (2000) (Discussing foreign student monitoring provisions). The report of The National Commission on Terrorism, released in June, 2000, can be accessed through the U.S. Government Printing Office Website at: www.gpo.gov 104Testimony of Paul Bremer, Hearing Before the Committee on Foreign Relations, United 

States Senate; 106 Cong. 2d Sess., June 15, 2000, www.access.gpo.gov/congress/senate at 5 (Emphasis added). 105 Richard Reeves, Security in the Homeland— A Tough Job, Universal Press Syndicate, Oct. 

12, 2001. 106 Id. 107 Id.

[100 the President can exercise considerably more power domestically that he could 

otherwise.101 The great danger, of course, is that military actions executed domestically pursuant to the war powers—whether or not constitutional—can inflict injustice on American citizens that otherwise would not be sanctioned.102

Preserving both liberty and security rather than sacrificing one or the other requires wise and, therefore, non-panicked policy. Fortunately, the constitutional 

structure imposes restraints on the process, even when issues are not justiciable. 

As the recent enactment of the USA PATRIOT Act reflects, the legislative process 

is so constituted that it slows legislation and forces compromises in order to reach 

consensus. Although adopted relatively quickly following the terrorist attacks, some 

of the Act’s important provisions had been the subject of discussion for some 

time.103 As the Chairman of the National Commission on Terrorism observed in presenting the report of the Commission to the Senate Foreign Relations Committee 

on June 15, 2000, fifteen months before the terrorist attacks of September 11th, the 

lack of well-considered policy threatens civil liberties: ‘‘Our view is that in the event 

of a catastrophic event such as we are talking about, where you have tens of thousands of people dead, the pressures will be very great on the President and the leadership of this country to impinge on civil liberties unless they have done some contingency planning and thought it through ahead of time....’’ 104

B. The Limits of Centralization and Security 

Since the attacks of September 11th, the knee—jerk reaction on the part of many 

has been towards greater centralized control. Underlying this reaction is the mistaken assumption that greater centralization would have prevented the attacks. The 

argument in favor of centralization ignores the consequences of concentration of 

power, which can be to escalate the damages if an attack is not prevented. Suppose 

the United States were as completely centralized as France, with all powers concentrated in one city like Paris. If in addition to being the political capital, Washington, D.C. was also the most populous city, the financial nerve center, and the 

single transportation hub, it would be the equivalent of Paris. In that situation, the 

combined attacks of September 11th would have been far more destructive to the 

country because the target would have been more centralized and concentrated. The 

physical and psychological damages would have been greater to the rest of the country precisely because of a greater dependence on the centralized target. 

Even if centralization per se were desirable, it must be recognized that the best 

security possible cannot immunize the country from terrorist attacks any more than 

security measures can eliminate crime. Charles Schnabolk, a well-known security 

consultant has consulted on terrorism threats to the World Trade Center over the 

years.105 A year ago, Schnabolk identified the greatest terrorist threat to the World 

Trade Center as ‘‘Someone flying a plane into the buildings. Someone blowing up 

the PATH tubes from New Jersey and water coming in from the Hudson River.’’ 106

After the events of September 11th, he said, ‘‘Everyone wants to believe that we can 

protect ourselves from terrorism—and we can’t.’’ The problem is the classic security 

problem: protecting certain targets may only divert criminal attacks to less protected targets. As Schnabolt has said, the purpose of electronic security systems ‘‘is 

to get the criminal to go next door to the building that does not have them.’’ 107

439

108Frank Keating, Gov. of Oklahoma, Testimony Before the 107th Congress House Committee 

on Government Reform; Subcommittee on National Security, Veterans Affairs, and International 

Relations (July 23, 2001). 109 Id. Local government and law enforcement agencies were the ones with the power to impose and enforce quarantines, curfews and states of martial law, to disseminate information 

through local media and to collate and forward epidemiological data to federal agencies such 

as the Centers for Disease Control in Atlanta. Local law enforcement would be the ones to discover, preserve and secure any available crime scenes of evidence. 110 Id. The one central problem which emerged in Oklahoma City was that of communications. 

From the initial response effort through the final body recovery, it was noted that the many 

different radio frequencies and institutional policies in play all too often left many participants 

in the effort in the dark concerning vital decisions that should have been shared universally. 

This was remedied in part—but only in part—by the creation of a unified command center 

which invited key representatives from all of the agencies involved to frequent information briefings and discussions on tactics. The rapid and accurate flow of information—both internally 

among government agencies and externally to the public—is absolutely essential. 111 Id. Perhaps the strongest lesson from Oklahoma City—and perhaps the most worrisome 

outcome from the Dark Winter exercise—concerns the almost instinctive urge common to officials of federal agencies and the military to open the federal umbrella over any and all functions 

or activities. Simply put, the federal government all too often acts like the 500 pound gorilla. 

In Dark Winter, we encountered this tendency as soon as state National Guard units were 

activated in response to the bio-terrorist attack. The function of those units—imposing curfews 

and quarantines and keeping public peace—were exclusively local in nature. Still, many of the 

participants sought to call the Guard into federal service immediately. I want to thank Senator 

Nunn, who played the role of the President in the exercise, for resisting this temptation and 

deciding not to federalize the Guard. (Emphasis added). 

Among many potential targets of terrorism, some are unique, e.g., the White 

House, the Capitol, and the Supreme Court Building. Anything which is unique, i.e., 

one of a kind, represents a form of centralization. The greater the centralization or 

concentration of wealth and/or power, the greater the level of security required. 

Thus the White House, the Capitol, and the Supreme Court get greater security 

than post offices, not solely because high-level officials may be ‘‘more important’’

than postal workers, but because there is only one Capitol, one White House, and 

one Supreme Court, whereas there are many post offices. The relationship between 

concentration/centralization and the need for security spreads across all levels of society. Even though there are many banks and armored trucks, they need more security than most residences because they are less numerous and contain more money 

than individual residences. ‘‘That’s where the money is!’’ as Willy Sutton, the bank 

robber said when asked why he robbed banks. With greater centralization or accumulation of money and/or power and the need for greater security, comes the potential for greater damages if the security is breached. 

This is not to argue against every response that involves some greater centralization. Rather, it is to argue that centralization per se is not wise policy. Thus, the 

Congress has debated whether airport security should be completely federalized/centralized by making security personnel federal employees or whether instead security 

should be governed by federal standards but administered by private contractors. 

The argument against making the security personnel federal employees is that degree of centralization actually undermines security. 

C. Centralized Coordination; Decentralized Execution 

Centralized coordination differs from centralized control. The federal government 

certainly has centralized control over the nation’s defenses. Under Article Two, Section 2 of the Constitution, the President commands not only the military services, 

but also ‘‘the militia of the several States, when called into actual Serves of the 

United States.’’ The federal government, however, does not and can not control all 

the many resources which contribute to the nation’s defense, such as the emergency 

medical response services. Nevertheless, federal agencies such as the Department 

of Health and Human Services serve as central points of data collection and dissemination which, when performing well, provide centralized coordination. 

In June, 2001, a simulated terrorism exercise, called ‘‘Dark Winter,’’ played out 

the consequences of the intentional release of the deadly smallpox virus in several 

cities. Governor Frank Keating, who took the role of a governor, testified about the 

lessons learned from this simulation.108 Governor Keating said the first lesson was 

‘‘that in virtually every possible terrorism scenario, first responders will be the 

local.’’ 109 The central problem preventing their working as a team was communication.110 The final conclusion and strongest lesson was simply this: ‘‘Resist the urge 

to federalize everything.’’ 111

440

112 18 U.S.C. §1385. 113See Hearing on the Department of Defense’s Role in Homeland Security: S. Armed Services 

Comm., 107th Cong. 4 (2001) ( Chairman of the Armed Services Committee Sen. Carl Levin 

raised the issue with Thomas White, Secretary of the Army: ‘‘Another overarching issue: Should 

the Posse Comitatus Act be revised or repealed?’’ at 4 ). 114See Federalist No. 8. The perpetual menacings of danger oblige the government to be always prepared to repel it—its armies must be numerous enough for instant defence. The continual necessity for their services enhances the importance of the soldier, and proportionably 

degrades the condition of the citizen. The military state becomes elevated above the civil. The 

inhabitants of the territories, often the theatre of war, are unavoidably subjected to frequent 

infringements of their rights, which serve to weaken their sense of those rights; and by degrees, 

the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them as masters, is neither remote, nor difficult:(sic) But it is very difficult to prevail upon a people under such impressions, 

to make a bold, or effectual resistance, to usurpations, supported by military power. 115Fox News reported and apparently overstated plans by the FBI supposedly involving a 

plan to change the architecture of the Internet, centralizing it by ‘‘rout[ing] traffic through central servers that it would [allow it] to monitor e-mail more easily.’’ See www.foxnews.com/story/

0,2933,37203,00.html 116See Leslie Walker, ‘‘Uncle Sam Wants Napster!,’’ The Washington Post, Nov. 8, 2001; Pg. 

E01. 

D. Concentrating on ‘‘Core Competencies’’

In the current war, the great difficulty lies in distinguishing what should and 

should not be federalized or centralized. As many American businesses have decided, it is good policy for corporations to concentrate on their ‘‘core competencies,’’

i.e., do only what they do best. Indeed, that just happens to be the organizational 

design of the Constitution, giving powers to the federal government that only it 

could do well. As illustrated by the following observations, devolving or shedding extraneous responsibilities from the center allows national security forces and federal 

law enforcement to concentrate on their primary responsibilities. 

1. The Military: The federal government has the ultimate responsibility for defending the nation from foreign attack and domestic civil disorder. Against foreign 

attack, the military stands at the forefront; in matters of domestic order, the military is the last resort. Recently, however, the specter of militarizing law enforcement has been raised when the Chairman of the Senate Armed Services Committee 

asked whether the Posse Comitatus Act,112 which generally prohibits the use of the 

military for law enforcement purposes, should be repealed.113

As discussed in Part I, foreign terrorists inside this country should be pursued 

under the war powers, not under law enforcement powers. If law enforcement 

agents are involved, they act in assisting national security actions, not law enforcement actions. That is just the converse of the situation addressed by the Posse Comitatus Act, which generally prohibits the use of the military to assist law enforcement. Thus the presence inside the country of foreign terrorists in no way implicates 

the Posse Comitatus Act. More importantly, militarizing law enforcement diffuses 

the military’s mission and endangers the citizens’ liberty.114

2. The FBI: The well—known difficulties of the FBI are at least in part due to 

expecting the Bureau to do too many things. If the Bureau has lost its focus, Congress must share much of the blame. Congress has imposed on the FBI wide-ranging responsibilities which result from too much federal criminal legislation that 

overlaps state criminal jurisdiction. Any resources the FBI devotes to crimes that 

are essentially state matters are resources that cannot be devoted to truly federal 

matters. Meanwhile, the FBI’s responsibilities for domestic intelligence cannot be 

performed by the state law enforcement. 

Moreover, the more the FBI is involved in ordinary, local crime the greater concern arises that the Bureau is directing its surveillance capabilities at ordinary citizens. To the extent that the Bureau is focused on intelligence related to foreign 

threats, its surveillance powers generate less concern about the potential for the 

abuse. There has been at least one report, however, that the FBI is preparing to 

increase its surveillance capability potentially over all citizens by imposing a centralized routing system on the Internet.115 In addition to the civil liberties concerns, 

such a centralizing of communication actually undermines the defense to terrorism, 

as discussed below. 

3. Communication Infrastructure: Decentralized communication received a big 

boost from the September 11th attacks. The use of wireless telephones on hijacked 

aircraft and in the Twin Towers demonstrated their intelligence and emergency response value. Since September 11th, the military has shown great interest in already 

available technology which can provide secure communications based on the peerto-peer concept of Napster.116 That same communication structure can fill the ‘‘comVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00076 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
441

117See Thomas E. Weber, ‘‘Terrorist Attacks Raise The Issue of How Best To Protect the 

Internet,’’ The Wall St. Journal, Oct. 8, 2001, A15. 118Thomas E. Weber, ‘‘A Primer on Technology That Has the Potential To Help Foil Terrorism,’’ The Wall St. Journal, Sept. 17, 2001, Pg. B1. 119See Kevin Maney, ‘‘Could Internet be used as a weapon against bioterrorism?,’’ USA 

TODAY, Oct. 24, 2001, Pg. 3B. 120On October 1, 2001, the United States Joint Forces Command published a document on 

the previously approved Global Information Grid (GIG), which is described as ‘‘a globally interconnected, end-to-end, interoperable, secured system of systems.’’ The document is posted at on 

a non-classified web site, https://jdl.jwfc.jfcom.mil

munication gap’’ which exists among local emergency response agencies, as related 

by Governor Keating’s report on ‘‘Dark Winter.’’

Through cutting-edge technology, communication is rapidly moving towards becoming ubiquitous. To the extent that it is based on or modeled after the Internet, 

this communication system will be decentralized. Although the Internet is not invulnerable,117 it is less vulnerable than more centralized communication systems, 

namely the telephone system. The origins of the Internet reflect a concern to create 

an alternative to the telephone system in order to have a communication system 

that would survive a nuclear attack. The Internet is a (con)federal system, with very 

minimal centralized control. 

Current developments in communications are leading what has been called the 

technology of decentralization.118 The Internet’s distributed communication is now 

being recognized as a strategy for defending against terrorism.119 As demonstrated 

on September 11th, however, the potential of the Internet is limited by the bottlenecks created by overloads on the centralized telephone system which is generally 

used to connect to the Internet. Instead of following the natural urge to centralize 

all communications that many in federal law enforcement have, the Federal Government could do much to defend against terrorism by centrally coordinating a rapid 

decentralization of the nation’s communications system. This approach may seem as 

counter-intuitive as the President’s proposed missile-defense system. Both proceed 

on the premise that the best offense is a good defense. In fact, the Defense agencies 

have recently announced such a decentralized communications model.120 The federal 

government could coordinate the extension of that kind of decentralized communication infrastructure so that, for example, a mission-critical communication system 

would connect the nations’ local emergency-response resources of police, fire and 

health agencies with each other, with federal agencies, with public health experts, 

and with the public. 

fMANDEL, LIPTON AND STEVENSON LIMITED

LAW OFFICES

CHICAGO, ILLINOIS 60602

December 4, 2001

Senator Russell D. Feingold 

506 Hart Senate Office Building 

Washington, D.C. 20510– 4904

Re: Farid Khorrami A77–928–803

Dear Senator Feingold.

I am a lawyer in Chicago and I represent Dr. Ahmad Farid Khorrami in matters 

related to his immigration status in the United States I am writing to you to provide information about Dr. Khorrami’s case which might be useful to you and other 

Judiciary Committee members during the hearings into the Justice Department 

practices in the aftermath of September 11th Dr. Khorrami is a 46 year old native 

of Iran and citizen of the United Kingdom Dr. IGhorrami first came to the United 

States in 1973 or 1974 as a student. He earned a Bachelor’s degree from Purdue 

University, attended Cornell University and MIT for a short period of time, earned 

a Master’s degree from the California Institute of Technology, and a Master’s degree 

from the University of California at Berkeley, where he also completed most of the 

requirements for a Ph.D. degree He then moved to the United Kingdom where he 

spent more than a decade, earning a Ph.D degree from Oxford University, becoming 

a British citizen, and working as a researcher at University College, London His 

studies and research have been in Engineering, Aeronautical Engineering, Aeronautics and Mathematics. He has been a teacher and has had a serious academic 

442

research career in Aeronautical Engineering, with a number of published research 

papers, as well as consultancy experience with industry in the United Kingdom. 

Pursuing a lifelong love of flying, Dr. Khorrami returned to the United States in 

the late 1990’s in M–1 status to take pilot training at the University of North Dakota, from which he graduated. Dr. Khorrami had taken his first flying lessons 

while an undergraduate at Purdue almost a quarter century earlier. After graduation from North Dakota, the INS granted him M–1 practical training and he worked 

for a short time as a flight instructor. 

Dr. Khorrami met, fell in love with and married a United States citizen, and in 

July, 2000 applied for permanent residence as the immediate relative spouse of a 

United States citizen As part of the lengthy process of adjustment of status, Dr. 

Khorrami applied for and was granted permission to travel internationally, which 

is granted to all applicants for adjustment of status, and is called advance parole. 

He used the advance parole to travel to Canada in February and March of 2001 and 

returned to the U.S. 

Six months later, on September 16, 2001, Dr. Khorrami was telephoned at home 

twice by someone claiming to be a reporter from the Chicago Tribune. Dr. Khorrami 

asked the ‘‘reporter’’ where he got his name, and the person said that he got it from 

the FBI. Dr. Khorrami then called the local office of the FBI to ask if They had 

given out his name and they claimed that they had not Dr. Khorrami described who 

he was and that he had briefly worked at two flight schools in Florida, and told the 

agent he would be happy to talk with him. The agent made arrangements to visit 

Dr. and Mrs. Khorrami the next day, Monday, September 17, 2001 at their home. 

Chicago FBI Special Agents Patrick Murphy and Josh Skul came to Dr. Khorrami’s apartment on that Monday at 9:OOa.m. and interviewed him for approximately 

three hours. At the conclusion of the interview, Dr. Khorrami asked if he were a 

suspect and Agent Murphy stated that if there had been any concerns, Dr. 

Khorrami would be leaving with them. He told Dr. Khorrami and his wife to go 

about their normal lives, and left. 

That same afternoon, Dr. Khorrami and his wife went to meet with his Supervisor 

at Skyway Airlines in Milwaukee. At the time of this meeting on Monday afternoon, 

September 17, 2001, FBI and INS agents began the questioning and interrogation 

of Dr. Khorrami which was to continue until 5:OOa.m. on Tuesday, September 18th. At the end of the interrogation, Dr. Khorrami was taken into custody. At all times, 

Dr. Khorrami voluntarily cooperated with government officials and answered all of 

their questions. While under the duress of this interrogation he was asked to take 

polygraph examinations on two occasions, and agreed to do so. 

While in INS/FBI custody, some time after 4:OOa.m. on September 18th, Dr. 

Khorrami was served with a written notice revoking the parole that he had used 

six months earlier to travel. The notice contained no reason or specification of immigration violation on which the revocation was based. The warning attached to Dr. 

Khorrami’s advance parole said that if his adjustment of status application was denied, he would be placed in removal proceedings. His application was not denied before the revocation was issued. Dr. Khorrami was then given a Notice to Appear in 

Removal Proceedings with a date and time to be set. The Notice to Appear alleged 

that he was a U.K. citizen who had last entered the United States on advance parole in March; that the advance parole had been revoked; and that as a result, he 

was an intending immigrant without proper documentation As a parolee whose parole has been revoked, Dr. Khorrami is not eligible for bond during the pendency 

of the removal proceedings, but is subject to release on parole, only as authorized 

by the District Director of the INS in Chicago, who is the person who revoked the 

parole and issued the Notice to Appear. These actions were taken despite the fact 

that Dr. Khorrami was an applicant for adjustment of status with an unadjudicated 

visa petition by his wife and his own unadjudicated application for permanent residence. 

On September 24th Dr. Khorrami was transferred to Chicago by the INS and has 

been in custody at the DuPage County Jail ever since. Since his transfer to the Chicago area on September 24th nobody from the FBI has spoken with him. We only 

found out about the first hearing in Dr. Khorrami’s case through inquiries made by 

Congresswoman Schakowsky’s office as the notice of hearing was sent by mail to 

Dr. Khorrami ‘‘c/o custodial office’’ and was never received by him or his representative. Closed hearings, barring even Dr. Khorrami’s wife, conducted with Dr. 

Khorrami in handcuffs have been held in the basement of the INS office in Chicago 

on October 10th, October 24th, and November 14th. The hearing scheduled for November 28th was cancelled due to illness of the Immigration Judge. Through the push 

of the immigration judge on October 24th, the INS scheduled an interview on the 

pending adjustment of status/immediate relative visa petition on October 29th An 

INS officer interviewed and took a Q&A for one hour of Mrs. Khorrami, and then 

443

* Charles VW. Gittins, a judge advocate and Lieutenant Colonel in the Marine Corps Reserve, 

specializes in representing military personnel in courts-martials and other military tribunals. 

the officer and I went to the basement to the INS detention office where she took 

a two hour question and answer from Dr. Khorrami. The officer then handed me 

a pre-printed notice denying Dr. Khorrami’s application for adjustment of status on 

the basis that the District Director who had revoked the advance parole of Dr. 

Khorrami lost jurisdiction over the adjustment of status application when the same 

District Director issued the Notice to Appear in Removal Proceedings. On November 

7, 2001 at 9:OOp.m three INS agents appeared at Mrs. Khorrami’s residence door 

without announcement by the doorman in her highrise building. One agent remained in the hallway and two agents came in and interviewed her for approximately one half hour regarding her marriage. 

Despite all of this, there has been no decision on the wife’s I–130 immediate relative visa petition although documentary and testimonial evidence of the bona fides 

e s of the marriage have been submitted, and no contrary evidence exists. If the I– 130 immediate relative visa petition is approved by the INS, the Immigration Judge 

is then able and willing to adjudicate Dr. Khorrami’s application for adjustment of 

status to conditional permanent resident of the United States Without an adjudication of the I-130 petition, the judge cannot hear evidence on the application. The 

hearing has been continued repeatedly because of the nonadjudication by the INS 

of the I–130 petition. There is no legitimate basis for either a further delay or a 

denial of this immediate relative visa petition; the delay is merely INS facilitation 

-of continued detention of Dr. Khorrami by instigation of other law enforcement authorities, probably the FBI, which could not itself hold Dr. Khorrami without 

charge. 

This case has involved no substantive charge of immigration violation or violation 

of criminal law. There was reason to interview, and perhaps interrogate and investigate Dr. Khorrami in midSeptember, there has been no lawful basis to detain him 

without a substantive charge for 2 1⁄2 months. He should not be in custody or in 

Removal Proceedings. We need Congress to press the Justice Department to restore 

law and order and to stop these denials of basic constitutional rights to due process 

of law. Thank you for your attention to this matter. 

Very truly yours, 

MANDEL, LIPTON AND STEVENSON LIMITED

f Terry Yale Feiertag

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

Marine Corps Reserve 

EXECUTIVE ORDER IS UNNECESSARY AND UNWARRANTED CURTAILMENT OF DUE

PROCESS

No one who witnessed the murder of thousands by terrorists using airliners as 

guided missiles, would dispute the imperative that those responsible for those attacks on America be brought to justice. The President’s November 13, 2001, Executive Order authorizing ‘‘military commissions’’ to selectively try those non-citizens 

the President deems subject to his order, however, is not the answer. The Order exceeds presidential authority, does not provide due process, and is unnecessary. 

As applied to Al Queda terrorist ‘‘enemy combatants’’ found outside the United 

States, the Supreme Court, in Application of Yamashita, concluded that the President’s power to direct trial by military commission is ‘‘without qualification. . .so 

long as a state of war exists—from its declaration until peace is proclaimed.’’ The 

Congress has not declared war on Al Queda nor has the President requested such 

an explicit declaration. Absent the declaration of war required by Yamashita, the 

President arguably has no Constitutional or statutory warrant to employ anachronistic military commissions. 

For those persons lawfully in the United States accused but not under arms and, 

therefore, not ‘‘enemy combatants,’’ military commissions may not be employed 

where the civilian courts are open and functioning. Supreme Court cases dating 

from Reconstruction have uniformly, and correctly, circumscribed authority of military tribunals to try civilians located on American soil. 

As justification for the present incarnation of military commissions, the President 

and Attorney General have oft-cited Franklin Roosevelt’s use of a secret military 

commission to try German saboteurs in the United States during World War II. The 

444

example, however, is inapt: the Germans were military combatants: a state of declared war existed between the two countries; and, the trial procedures followed in 

the military commission were the very same as procedures then-applicable to courtsmartials for American military personnel. Since then, the Articles of War, under 

which Roosevelt’s military commissions were conducted, have been superceded by 

Congress’ enactment of the Uniform Code of Military Justice in 1951 and notions 

of required military due process have substantially evolved. 

The promulgation of summary procedures that depart substantially from traditional notions of due process and appropriate commission procedure is a danger signal. During hearings on the Articles of War and wartime military commissions, the 

Army Judge Advocate General clearly articulated to Congress that military commissions and military courts-martials should be governed by identical procedures. Since 

last employed by President Roosevelt, military due process has substantially improved: the accused is entitled to representation-by a qualified lawyer; a specially 

qualified military judge presides over the trial; rules of evidence govern admission 

and exclusion of evidence; and, military appeals courts review courts-martials, including mandatory review by the United States Court of Appeals for the Armed 

forces where an accused is sentenced to death. The Order, reliant as it is on outmoded and superceded World War 11 procedures, has not accounted for the substantial evolution of due process and its present application to military courts. 

The administration also claims that protection of classified information compels 

the secrecy requirement and attenuation of basic procedural safeguards provided in 

federal courts anal courtsmartials. Such concerns, however, do not mandate the regressive trial procedures described in the Order. Federal courts and military courtsmartials both are subject to and employ the Classified Information Procedure Act 

(‘‘CIPA’’), enacted by Congress with the support of the Executive branch. CIPA’s 

purpose is to protect classified ‘‘sources and methods’’ from public disclosure. Military and civilian trials too numerous to count, including the just completed federal 

court trials of the terrorists involved in the 1993 World Trade Center bombing, have 

successfully balanced the need to protect classified information with the requirements of due process for the accused. Curtailment of due process, where permitted, 

must be made with surgical precision. We rightly should be skeptical of a non-specific ‘‘national security’’ talisman—such as provided President Roosevelt justification 

to imprison Japanese-Americans during World War 11 and for the secret exposure 

of soldiers to nuclear blast radiation during the 1950%. 

Finally, employment of jerry-built military commissions is unnecessary to successfully prosecute terrorists. If full and fair trials in military courts for combatants

found outside of the United States is appropriate, the Uniform Code of Military Justice, Article 18, provides full court-martial jurisdiction and well-established trial 

procedures. Court-martials, providing for adversarial pre-trial investigation; trial 

procedures providing for a qualified military judge presiding; rules of evidence assuring only relevant and competent evidence is admitted at trial; public trials, consistent with CIPA procedure; and, judicial review of convictions obtained in those 

trials will not, as the Attorney General recently suggested be a ‘‘spectacle.’’ Instead, 

transparent public trials conducted pursuant to established law, under procedures 

applied equally to American service personnel, that are fair and perceived to be fair, 

will ensure that the results are accepted by world observers as more than ‘‘victor’s 

justice.’’

For non-citizen residents tried pursuant to presidential accusation, federal courts 

are fully capable of providing justice, as the recent World Trade Center bombing 

trial demonstrated. Exigency is no reason. to abandon exemplary American judicial 

process. Further, eroding the rights of a small class of accused U.S. residents upon 

bare accusations threatens the liberty of us all, as Thomas Paine observed: ‘‘He that 

would make his own liberty secure must guard even his enemy from oppression; for 

if he violates this duty he establishes a precedent that will reach himself.’’ Congress 

rightly should exercise its oversight to prohibit employment of military commissions 

within United States borders and require that military trials conducted outside the 

United States comply with present notions of due process provided in courts-martial.

f445

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

THE LAW

TRIBUNAL COMPARISON TAINTS COURTS-MARTIAL, MILITARY LAWYERS SAY

Former military lawyers say they are angered by a public perception, fed most 

recently by the top White House lawyer, that the military tribunals authorized by 

President Bush are merely wartime versions of American courts-martial, a routine 

part of military life with a longstanding reputation for openness and procedural fairness. In fact, the proposed tribunals are significantly different from courts- martial, the 

lawyers say, adding that confusion between the two has distorted the debate over 

the tribunals and unfairly denigrated military justice. ‘‘It bothers me that people are thinking we try thousands of people this way in 

the courts-martial system,’’ said Ronald W. Meister, a New York lawyer who is a 

former Navy lawyer and judge. ‘‘We do nothing of the sort,’’ he said. ‘‘These commissions are a totally different 

animal.’’ John S. Cooke, a retired Army judge who is the chairman of the American Bar 

Association’s committee on armed forces law, said military courts had been tainted 

by association with the tribunals, which many commentators, politicians and civil 

libertarians criticized as an effort to find a foolproof shortcut to a guilty verdict. ‘‘There’s been a lot of talk about military kangaroo courts,’’ Mr. Cooke said. ‘‘Having grown up in the courts-martial system, I’m rather offended by it, because it is 

a good system that provides more than adequate due process for the men and 

women in our military service.’’ Standard military courts closely resemble civilian courts in many ways, Mr. Cooke 

said. He added that they offered many of the fundamental protections that critics 

had said the president ignored in his Nov. 13 order authorizing the military tribunals. Courts-martial, for example, are governed by rules of evidence similar to those 

in civilian courts. They give defendants full rights to appeal a conviction, require 

proof of guilt beyond a reasonable doubt and require a unanimous decision to impose the death penalty. 

But those and many other protections were missing from the sketchy outline of 

the tribunals proposed in the president’s order. The administration is working on 

more detailed rules, and officials have said the criticism is premature. 

But the order specified some details that distinguished the tribunals from courtsmartial. The order Tribunal Comparison Taints Courts-Martial, Military Lawyers 

Say provides, for instance, that sentences—apparently including the death penalty—

can be imposed by a two-thirds vote of the tribunal members. 

In courts-martial, the rules limiting the kind of evidence that can be heard are 

as strict as they are in civilian courts. 

Hearsay, for example, is limited in both civilian courts and courts-martial because 

it is often unreliable. But the president’s order suggested that any evidence—apparently including hearsay would be admitted if it had ‘‘probative value to a reasonable 

person.’’

ite the differences between the systems, administration officials have sometimes 

seemed to confuse the two. 

In an Op-Ed article in The New York Times on Friday, Alberto R. Gonzales, the 

White House counsel, defended the commissions, saying they would be fair. 

Mr. Gonzales continued with an assertion that appeared to liken the commissions 

to courts-martial. 

‘‘The American military justice system is the finest in the world,’’ he wrote, ‘‘with 

longstanding traditions of forbidding command influence on proceedings, of providing zealous advocacy by competent defense counsel and of procedural fairness.’’

Some critics say the administration appears to be fostering the confusion to blunt 

criticism of the tribunals. 

‘‘The confusion benefits the administration,’’ said Eric M. Freedman, a professor 

of constitutional law at Hofstra University School of Law in Hempstead, N.Y. ‘‘If 

the government can spread the impression that the tribunals are like the courtsmartial, that would allay many fears.’’

In the battle of perception, both sides have been making statements that may not 

be accurate. Critics have said tribunals will conduct ‘‘secret trials.’’

Mr. Gonzalez wrote that the commissions ‘‘will be as open as possible,’’ though 

the president’s order permits closed proceedings. 

446

It is not yet clear how far the administration will go in closing proceedings. But 

lawyers say the issue of whether the trials will be public also shows the differences 

between the two military systems. 

Courts-martial, like civilian courts, are presumed to be open, and judges close 

them only in extraordinary circumstances. 

Last spring, news organizations from all over the world attended preliminary 

hearings in the military justice system for Cmdr. Scott D. Waddle, the commander 

of a Navy submarine that accidentally sank a Japanese fishing trawler off Hawaii 

in February. 

By contrast, the last time the United States used military commissions, German 

saboteurs were tried, convicted and sentenced to death in closed proceedings in 

Washington in World War II. 

Some lawyers say such contrasts show how different the two systems are. 

They say the administration seems unaware that trials that appear to include 

shortcuts to win convictions may raise suspicions around the world. 

Edward F. Sherman, a former Army lawyer who was until recently the dean of 

Tulane Law School in New Orleans, said a prominent example was that under the 

president’s order, defendants in the tribunals might not be permitted to select their 

own lawyers. 

Defendants in courts-martial are allowed to do so. 

Mr. Sherman said that and many other omissions raised questions about how 

commission trials would be perceived. ‘‘If it appears they’re assigning lawyers and just going through the steps and then 

imposing the death penalty,’’ Mr. Sherman said, ‘‘there would be questions around 

the world about whether these kinds of trials comport with the basic due process 

we expect in our legal system.’’

f RANDALL B. HAMUD

SAN DIEGO, CA 92101

November 29, 2001

Honorable John Ashcroft 

Attorney General of the 

United States Department of Justice 

Room 4400

950 Pennsylvania Avenue N. W. 

Washington, D.C. 20530– 0001

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

Osama Awadallah

Dear Mr. Ashcroft:

During your news conference on November 27th, you stated that you were unaware of any civil rights violations having befallen any of the approximately 1,200 

people arrested as part of your dragnet of Arabs and Muslims. You further stated 

that all of the persons arrested were entitled to family visits and had counsel or 

the opportunity to retain counsel. Moreover, you expressed hope that ‘‘those who 

make allegations about. . .violation. . .of an individual’s civil rights would not do 

so. . .without specificity....’’

You were mistaken about the absence of civil rights violations, and you were mistaken about family visits and contact with counsel. At your invitation, I take this 

opportunity to provide you with the specifics which you claim to lack even though 

your subordinates have been aware of them since their occurrence. For example, 

during the news conference two FBI agents in the company of Mr. Jesse Berman, 

Esq., Mr. Awadallah’s criminal defense attorney in New York, were at the New York 

Metropolitan Correctional Center (hereinafter ‘‘MCC’’) interviewing Mr. Awadallah 

about the violation of his civil rights while in federal custody. 

First, I begin by stressing that since their arrest as ‘‘material witnesses’’ on September 21, 2001, my clients’ civil rights have been repeatedly violated by the incarcerating authorities, i.e., the prison officials and the local offices of the United 

States Attorney. Those violations began almost immediately when each of them was 

denied any opportunity to call a lawyer after his arrest in spite of having received 

Miranda warnings. 

Mr. Awadallah’s family retained me on the afternoon of the 21st to represent him. 

When I was finally able to interview him at MCC San Diego on the morning of September 22nd, he reported to me that he had requested to call an attorney, that his 

447

request had been denied, and that he was told that he would be taken to New York 

and jailed for ‘‘a year,’’

I was unable to interview Mr. Awadallah on the 21st’’ because when I visited the 

San Diego MCC that evening, I was initially told by the prison guards that no such 

person was there. I knew otherwise. Coincidently, that same afternoon I had been 

at the FBI headquarters on another matter; and the agents with whom I was dealing had confirmed that Mr. Awadallah had been arrested and was at MCC. After 

one and one-half hours of cajoling the FBI from my cellular telephone in front of 

MCC, I was finally told that, indeed, Mr. Awadallah was there and that I could see 

him. When I was finally directed to the attorney interview room on the third floor, 

I found a young man whom I thought to be Mr. Awadallah, whom I had never met. 

The young man proceeded to tell me that he had been arrested that afternoon as 

a material witness; that he had requested to call and attorney; that his request had 

been denied; and that he was told that he would spend the next year in jail in New 

York. Then we discovered that he was not Mr. Awadallah. He was Mohdar 

Abdallah. Notwithstanding that the incarcerating authorities had been denying him 

the opportunity to contact an attorney, one was now in his presence. Suffice it to 

say that he immediately retained me. 

After completing my initial interview of Mr. Abdallah, I went back downstairs and 

explained the mistake to the prison guards. I informed them I now represented Mr. 

Abdallah and requested to see my other client, Mr. Awadallah, I was told to leave 

the prison immediately. My protests were futile, and I left. I was finally saw Mr. 

Awadallah on the morning of September 22nd. 

Even after assuming a documented representational role of behalf of my clients, 

time and again the incarcerating officials have interfered with the former’s ability 

to communicate with me and with my ability to with visit them. While they were 

material witness detainees, my clients were never allowed to call me by telephone 

when they needed to speak with me. And several times, I was denied access to them 

when I attempted to visit them both at MCC in San Diego and at MCC in South 

Manhattan. 

As the Attorney General of the United States, you should be especially sensitive 

to the importance of a represented inmate’s right to free and unobstructed access 

to his or her attorney. Time and again, that has not been the case relative to my 

clients when they were being held as material witnesses. On September 23, 2001, 

I visited MCC in San Diego and was told that neither of them was there. After more 

cellular-telephone cajoling with the FBI, I was told that, in fact, they were there 

and that I could see them. I note that their presentation to the magistrate was 

scheduled for September 24th. This was a deliberate attempt by the incarcerating 

authorities to interfere with my preparations for their coming court appearances. 

After completing of the magistrate’s appearances on September 25th, sometime between that day and September 27th they were spirited out of MCC in San Diego. 

Not until the morning of October 1st did I learn that they were in New York. Both 

of my clients informed me that daring their transit to New York they had repeated 

requested to contact me and that their requests had been denied. Similarly, between 

October 24th and November 5th, when Mr. Abdallah was returned to San Diego to 

face incidental immigration charges, he again was denied any opportunity to call me 

while in transit. I had no idea of his whereabouts until he turned up in San Diego 

on the morning of November 5th. 

And I note that after Mr. Awadallah completed his material witness testimony in 

New York on October 15th and was rearrested and charged with allegations of misrepresentation before the grand jury, both Mr. Berman and Mr. Awadallah have encountered similar obstacles. I enclose for your information a copy of Mr. Berman’s 

letter of November 12, 2001, addressed to the Honorable Shira A. Scheindlin, District Court Judge, in which he catalogues his many complaints and frustrations. 

Note that his complaints include the inability of Mr. Awadallah to call Mr. Berman, 

the refusal to allow Mr. Berman to see Mr. Awadallah, and the continuing refusal 

of the incarcerating officials to allow Mr. Awadallah family visits. As October 23th, 

Mr. Berman was denied access to Mr. Awadallah, 

This inappropriate behavior by the incarcerating authorities made Mr. Berman’s 

preparation for the November 21st bail hearing even more problematical. It was as 

though the government was deliberately doing everything that it could to prevent 

him from fully preparing his client and his witnesses for that hearing. Such conduct 

is almost beneath comment. 

An even more egregious violation of Mr. Awadallah’s civil rights occurred on the 

afternoon of October 4, 2001. At that time, Mr. Berman and I observed bruises on 

Mr. Awadallah’s upper right arm, neck, wrists, and ankles. Mr. Awadallah informed 

us that the guards had hurt him. 

448

We observed his injuries during a 2:00 p.m. proffer session in a fifth-floor conference room at the offices of the United States Attorney in South Manhattan, 500 

Pearl Street. Present at the session were the following United States Attorneys: 

Robin Baker, Chris Marvillo, and Rob Spencer. Also present were FBI agents Adam 

Cohen, Jacqueline McGuire, and Ryan Plunkett. All of them observed the bruises, 

as Mr. Berman and I pointed them out to those present. Further, at that time Mr. 

Awadallah told us that earlier that day he had been taken to the prison dispensary 

for xrays to determine whether he had any broken bones. And a blood sample had 

been taken from him, and possibly, he had received some sort of injection. In our 

presence, he still wore a bandage over the needle sticks) in his left arm vein. 

I was quite distressed at seeing his injuries. You see, on the morning of October 

2nd before court proceedings were convened in South Manhattan, Mr. Awadallah had 

informed me that he had been beaten by the prison guards. Because of the order 

sealing those proceedings, I am not at liberty to disclose the substance of what occurred after I discovered this information. However, as the Attorney General of the 

United States, you may obtain this information by reviewing the transcripts of those 

proceedings. I invite you to do so. 

On the afternoon of October 4th I informed Ms. Baker and the others present that 

I wanted my clients moved from MCC before any further injuries were inflicted on 

any of them. I gave them twenty-four hours within which to do so. The next day, 

I was informed by Ms. Baker that my clients would not be moved. My response was 

to publicize the incident that afternoon in the hope that publicity would prevent further brutality. Apparently I had some modicum of success, as Mr. Awadallah later 

reported to me that a physician had examined him, that a prison official had met 

with him and given him tips about placating his guards, and that his physical treatment had somewhat improved. My thanks to the Fourth Estate. 

Finally, regarding my clients’ overall treatment while at MCC’s in San Diego and 

New York, I have several other complaints. In addition to the earlier discussed denial of family visits, they were denied television and radio privileges; reading and 

writing materials; mail privileges; and meals in conformity with their Muslim faith. 

I know full well that ‘‘kosher’’ meals, which my clients may eat, are available at 

both facilities and that such meals were repeatedly denied to them. As recently as 

November 5th, when meeting with Mr. Abdallah at the federal court holding facility 

in San Diego, he was served a ham sandwich for lunch. Further, at MCC in New 

York, the guards constantly harassed my clients and the other material-witness 

Arab/Muslim inmates by referring to them as ‘‘f ——— ing terrorists;’’ by making 

sexually inappropriate remarks to them when they are stripped naked and 

videotaped several times a week (for security purposes?); and by mocking and denigrating their religious practices (e.g., forcing them to replace the sheet on their bed 

whenever they were attempting to use it as a rug on which to conduct their Muslim 

prayers), and their Prophet (Praise be I-iis Name). I believe that one of my clients 

best described their conditions on incarceration. when he stated that ‘‘people in this 

country treat their animals better than we were treated.’’

Before closing, please let me comment about your observation on November 27th

that the absence of any civil rights lawsuits pertaining to detainees like my clients 

led you to believe that no civil rights violations had occurred. As an attorney, you 

know full well that the timing of such lawsuits depends on many factors other than 

your own impression about when they should be filed. And you also know that many 

of these proceedings remain under seal, which complicates any immediate filings. 

But let me assure you, sir, that such lawsuits are being readied. They are a natural consequence of your own words and deeds. As you yourself have said, ‘‘all possible measures are being taken to detect and prevent future attacks to both incapacitate and deter would be terrorists.’’ You have chosen to do by casting a nationwide dragnet woven from the threads of racial, ethnic, and religious profiling. You 

have chosen to do by advising your President to eavesdrop on the communications 

between profiled inmates and their attorneys. You have chosen to do so by casting 

aside the United States Constitution and the finest criminal justice system in the 

world and advising your President to empanel military tribunals for the trial and 

probable execution of accused who will have no right of judicial review. Doubtlessly, 

at the appropriate time and in the appropriate venues, the offices of the United 

States Attorneys across this great country will be very busy in the courts responding 

to the multitude of lawsuits engendered by your misguided policies. 

In conclusion, I hope that I educated you regarding the civil rights violations that 

have befallen my clients. I am certain that their situations are the rule rather than 

the exception among those presently incarcerated. I leave it to you to determine 

henceforth whether such violations will remain the rule rather than the exception. 

And a final note of legalese’. this letter is for informational purposes and is not to 

be construed to be a formal claim prefatory to the filing of any lawsuit against the 

449

federal government or any other state or local entity or any individual. If necessary, 

such formal claim or claims will be later filed under separate cover. 

Very truly yours, 

RANDALL B. HAMUD

CC:

Sen. Patrick Leahy, Chair 

Senate Judiciary Committee 

By Facsimile: 202-224-9516 (w/encls)

Senator Russ Feingold 

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

Representative Bob Barr 

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

Jesse Berman, Esq. 

By Facsimile: 212–941–0980 (w/o encls.) encls.

fJESSE BERMAN, ATTORNEY AT LAW

NEW YORK, NEW YORK 10013

November 12, 2001

Hon. Shira A. Scheindlin 

United States Court House 

500 Pearl Street 

New York, NY 10007

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

Your Honor:

As the November 21, 2001, bail hearing in this matter approaches, I want to provide an update on the status of my attempts (1) to have Mr. Awadallah be allowed 

to telephone me t at my office and (2) to have the MCC officials approve Mr. 

Awadallah’s family so that they could visit him prior to the bail application. 

The history surrounding these two questions is as follows: 

The government has known since October 4, 2001, that I am Mr. Awadallah’s attorney: I represented him at his October 4, 2001, proffer session with the government: I represented him at his October 10 and 15, 2001, appearances before the 

grand jury; I represented him at his October 16, 2001, appearance before Judge 

Mukasey; and I represented him at his October 19, 2001, appearance before Magistrate Judge Gorenstein. On that same day, I filed my notice of appearance on behalf of Mr. Awadallah with the clerk of the Court. 

In mid-October 2001, Mr. Awadallah (who has been held in solitary confinement 

since September 21, 2001) filed with hi’ counselor at MCC, Mr. Santiago, a written 

request that his father, Ismail Awadallah, and his brother, Jamal Awadallah (both 

of whom are United States citizens), be permitted to visit him. 

On October 23, 2001, I attempted to visit Mr. Awadallah at MCC and was denied 

access to him. After I waited in the ground-floor lobby of MCC for an hour, I was 

permitted to speak over the telephone to Les Owen, the in-house legal counsel at 

MCC. Mr. Owen, who refused to emerge from his ground-floor office to see me faceto-face, said that the government had not yet informed MCC that I was Mr. 

Awadallah’s lawyer. I asked Mr. Owen to phone the magistrate’s clerk’s office, 

where my notice of appearance on behalf of Mr. Awadallah was on file. He refused, 

stating that only the U. S. Attorney’s office, and not the Court, would tell MCC who 

could visit anyone. 

On November 1, 2001, I visited Mr. Awadallah at MCC, on 9 South, the Special 

Housing Unit. I asked the officers on 9 South if Mr. Awadallah’s family had been 

approved to visit him. I was told to check with Counselor Santiago. Counselor 

Santiago was not in the counselor’s office at that time. I was also told by the 9 

South officers that Mr. Awadallah was allowed to phone me if he gave 48 hours 

written notice. 

On November 2, 2001, I phoned Mr. Santiago. Again I was told that he was not 

in his office at the time. I left Mr. Santiago a clear message to call me. He has never 

returned my call. 

On that same day, I phoned MCC counsel Les Owen and left him a message to 

call me. He has never returned my call. 

When I raised these issues in court on November 5, 2001, the Court suggested 

that AUSA Robin L. Baker look into it. On November 6 or 7, 2001, 1 phoned Ms. 

450

Baker. She said she had spoken to Mr. Owen, who had informed her that Mr. 

Awadallah is not permitted to phone me at all, since my office is not out of town. 

Ms. Baker said that Mr. Owen would be writing me a letter explaining this policy. 

Mr. Owen has never written me. 

I visited Mr. Awadallah today at MCC, on 9 South. Prior to going up to 9 South, 

I asked the lobby desk officer whether Mr. Awadallah’s family had been approved 

yet to visit him. He said that they had not been approved yet, because the computer 

had been down for the past three weeks. 

Mr. Awadallah’s brother, Jamal Awadallah, is flying here from San Diego on November 19, 2001. The family is of modest means, and airline tickets purchased on 

short notice at Thanksgiving time are, of course, very expensive. 

I am requesting this Court to intervene to the limited extent of directing that Mr. 

Awadallah and his brother and I be permitted to meet on November 20, 2001 at 

MCC or, if that is impossible, at the court house, so that we might prepare for the 

bail hearing of November 21, 2001. 

Respectfully yours, 

JESSE BERMAN

cc: AUSA Robin L. Baker

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

fTHREAT WARRANTS LEEWAY

OPPOSING VIEW: ADMINISTRATION’S USE OF LAWFUL POWERS FOLLOWS THE

CONSTITUTION. 

America is at war. Our adversary is a global terrorist organization that has 

imbedded hundreds of ‘‘sleeper agents’’ in America. These ‘‘sleeper agents’’ have 

killed thousands of Americans and stand ready to launch further attacks if given 

the chance. 

The American people understand the threat we face. They know our leaders are 

acting out of a sincere concern for both our security and our liberty. They understand we must do everything in our power, consistent with our Constitution, to protect ourselves from those who aim not to change our way of life but to kill as many 

of us as possible. And they agree with noted Harvard law professor Lawrence Tribe 

when he arms that ‘‘Civil liberty is not only about protecting us from our government. It is also about protecting our lives from terrorism.’’

The Senate Judiciary Committee recently held oversight hearings concerning the 

administration’s efforts to protect America from terrorists. Those hearings culminate 

today with an appearance by the attorney general. He will confirm what countless 

other legal experts already have told the committee: The administration has aggressively used every lawful power at its disposal to investigate and prevent terrorist 

attacks. These powers are appropriate given the threat we face. And the use of 

these powers military commissions, alien detention and monitoring communications 

of suspected terrorists and their attorney agents does not violate our Constitution. 

Military commissions have been used since George Washington used them in the 

Revolutionary War. They have been used by other presidents including Franklin 

Roosevelt They have been authorized by Congress and repeatedly approved by the 

Supreme Court for use in trying war criminals. 

The 608 people detained by the justice Department have been detained for criminal offenses, immigration violations or because they are material witnesses in the 

terrorism investigation. The detainees have access to attorneys and to our courts. 

Independent federal judges have ruled that these individuals should not be released 

on bond. Publishing detainees’ names would jeopardize the terrorism investigation, 

endanger lives and violate detainees’ privacy. Ironically, the same civil liberties 

groups demanding publication of the detainees’ names previously opposed the publication of the names of convicted sexual predators. 

The Justice Department’s regulation lawfully allows the monitoring of conversations between extremely dangerous federal prisoners and those attorneys suspected 

of carrying messages for them. The Constitution does not require that we allow terrorists to conduct their murderous operations from within our prisons. 

Yes, the administration has been aggressive in using the Constitutional powers 

at its disposal to protect Americans. But given what happened Sept. 11, wouldn’t 

it be unforgivably derelict if it did not? 

451

* David B. Rivkin, Jr., Lee A. Casey, and Darin R. Bartram practice law in the Washington 

office of Baker & Hostetler, LLC. They frequently write on constitutional and international law 

issues. Messers. Rivkin and Casey served in a variety of legal positions in the Reagan and Bush 

Administrations. 1Osarna bin Laden, the acknowledged leader of the al-Qaeda network, may be killed in the 

fighting. If he is captured, the United States and other countries involved have several legal 

options available to them regarding his trial. See infra. But the legal analysis in this memorandum would apply to bin Laden if he were extradited to and tried within the United States. 2 Neil A. Lewis, ‘‘Detentions After Attacks Pass 1,000, U.S. Says,’’ The New York Times, October 30, 2001. 3Philip Shennon and Don Van Natta, Jr., ‘‘U.S. Says 3 Detainees May Be Tied to Hijackings,’’ The New York Times, November 1, 2001. 4 Richard Willing, ‘‘Feds Explore How to Try Terrorism Suspects,’’ USA Today, October 15, 

2001, at 13A. 5 Although some measures can be, and have been, taken to protect classified evidence in the 

context of criminal trials, e.g., the Classified Information Procedures Act of 1980 (CIPA), 18 U.S. 

C. App. §§ 1–16, constitutional imperatives ensure that the judicial proceedings in the ordinary 

federal courts cannot go too far down this path. The CIPA primarily constrains pretrial ‘‘discovery’’ opportunities. In the normal federal courts, the CIPA does not substantially alter the 

government’s obligation under Article III of the U.S. Constitution and the Sixth Amendment to 

conduct a ‘‘public trial’’ and present to the jury, in open court, the facts on which it is relying 

to establish a defendant’s guilt. 

Sen. Orrin Hatch, R-Utah, is ranking minority member of the Senate Judiciary 

Committee.

Statement of the Heritage Foundation, by David D. Rivkin, Jr*., Lee A. 

Casey, and Darin R. Bartram, Washington, D.C. 

f BRINGING AI-QAEDA TO JUSTICE: THE CONSTITUTIONALITY OF TRYING AI-QAEDA

TERRORISTS IN THE MILITARY JUSTICE SYSTEM

EXECUTIVE SUMMARY

As the United States and its coalition partners execute diplomatic, financial, and 

military responses to the September 11 terrorist attacks, the legal options regarding 

the trial of members of the alQaeda terrorist organization are being increasingly 

discussed.1. As many as 1,000 individuals have been detained by law enforcement 

authorities in this country in response to the attacks.2 Reports that some of them 

may have been directly involved in the September 11 conspiracy or were planning 

to carry out similar terrorist acts add a particular urgency to the discussion.3 Attorneys have been appointed for, or employed by, those who have been detained, and 

legal proceedings likely have begun with respect to their detention. At some point 

in the near future, the executive branch will likely have to decide whether to release 

them, deport those that are subject to deportation, or charge them with a crime. 

With respect to the last option, the government will have to decide what charges 

to bring against them and W what court system. 

Some commentators have suggested that members of al-Qaeda apprehended in or 

extradited to the United States should not be treated as ordinary criminal defendants, but instead tried in military courts, either by regular courts martial or by specially constituted military commissions. Media reports indicate that this issue is already being considered by, among others, the staff of the Senate Committee on the 

Judiciary.4

From the government’s perspective, the use of the military justice system to try 

al-Qaeda members involved in terrorist acts on behalf of a hostile foreign power offers several advantages. In particular, trials before military tribunals need not be 

open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly 

sensitive intelligence material, which would have to be made public in an ordinary 

criminal trial. A number of government officials have indicated that the previous 

trials of terrorist defendants, including the 1993 bombers of the World Trade Center, resulted in damaging disclosure of information on intelligence sources and 

methods, investigative techniques, and other matters that have made it more difficult for the United States government to uncover and prevent such plots in the 

future.5

Under the Uniform Code of Military Justice (UCMJ), and military court decisions 

interpreting it, the accused enjoy extensive due process protections, but their rights 

are not coextensive with the protections civilians enjoy in normal criminal trials 

452

6 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159–160 (1963). 7William Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Alfred A. 

Knopf, 1998), p. 222. 8 317 U.S. 1 (1942). 

held in the United States. Military tribunals are not required to offer the same due 

process rights guaranteed by the Constitution in Article III, the Fourth, Fifth, Sixth, 

and Fourteenth Amendments, as well as those articulated in various judicial decisions interpreting those constitutional provisions. For example, the precise contours 

of the Fourth Amendment exclusionary rule that flowed from Mapp v. Ohio, 367 

U.S. 643 (1961), and later cases do not apply in military courts, although military 

court decisions have imposed an analogous exclusionary rule in courts martial. It 

is, of course, possible for the President to incorporate all of the due process protections of the UCMJ and related legal precedents, or a great number of them, into 

any specially constituted military tribunal. Nevertheless, any al-Qaeda defendant 

will almost certainly object to the jurisdiction of a military commission and argue 

that he is entitled to trial in a non-military court with exactly the same protections 

as other civilians. 

As a result, the constitutional basis for the use of military commissions, or even 

of regular courts martial, to try members of al-Qaeda must be carefully considered. 

Although the practical benefits of military trials may be obvious, their use with respect to individuals not regularly enrolled in a military force represents a clear departure from normal legal processes in the United States and from some of its most 

fundamental judicial traditions. In addition, there could be diplomatic difficulties 

and other costs associated with trying al-Qaeda terrorists by military tribunal. If 

intelligence sources and methods would not be compromised by a public trial and 

the risk of additional terrorist actions were not substantial, the United States might 

prefer a public trial so that the rest of the world can evaluate the strength of the 

evidence against each defendant. 

For the foregoing reasons, this memorandum is not intended to present an argument for or against the use of military tribunals to try al-Qaeda terrorists; instead, 

it merely presents an analysis of the constitutionality of that option. In the end, 

only the executive branch will possess the necessary information to weigh the potential harm to America’s intelligence apparatus and other risks of along public trial 

against the foreign policy ramifications or other potential effects of a military trial. 

BRIEF SUMMARY

It has long been recognized that the Constitution, in Justice Arthur Goldberg’s much-quoted phrase,’’ is not a suicide pact,’’ 6 and that the government enjoys extraordinary power during wartime. As Chief Justice William Rehnquist has noted: 

In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts in favor of order—in favor of the government’s ability to deal with conditions that threaten the national well-being.7

At the same time, limiting the due process rights, particularly the right of public 

trial by jury, of individuals accused of capital crimes is a grave and extraordinary 

measure involving procedures that the Supreme Court has approved in only very 

limited circumstances. In particular, the only case in which the Supreme Court explicitly upheld the constitutionality of trying individuals, who were apprehended in 

the United States and who were not regularly enlisted in the armed forces of the 

United States or some other power by military commission, was decided during the 

summer of 1942—a time soon after the entry of the United States into the World 

War II. 

When the Supreme Court rendered this decision, Ex parte Quirin,8 the United 

States was engaged in a formally declared war, a point noted by the Court. To date, 

Congress has not declared war with respect to the armed conflict between the 

United States and al-Qaeda’s primary state sponsor, Afghanistan’s ruling Taliban; 

and there appears to be no immediate plan to do so. This raises difficult questions 

regarding whether America is nevertheless in a state of war for certain constitutional purposes, and if so, with whom it is at war. We believe the Supreme Court 

would defer to Congress’s determination of those issues in a formal declaration of 

war and uphold the trial of saboteurs and spies, like those in Quinn, who violate 

the laws of war on behalf of a hostile foreign power. 

Although our focus in the rest of this memorandum is on the question of whether 

al-Qaeda members apprehended in the United States, or extradited to the United 

States, can be tried by military commission in the absence of a declaration of war, 

it is likely that the Supreme Court would allow the trial overseas by military comVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00088 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
453

9See In re Yamashita, 327 U.S. 1 (1946) (Japanese general Tomoyuki Yamashita could be 

tried by military commission). 10See Reid v. Covert, 354 U.S. 1, 33 (1957) (‘‘In the face of an actively hostile enemy, military 

commanders necessarily have broad power over persons on the battlefront. From a time prior 

to the Constitution the extraordinary circumstances present in the area of actual fighting have 

been considered sufficient to permit punishment of some civilians in that area by military courts 

under military rules.’’). 11 71 U.S. 2 (1866). 12 Id. at 121. 13There is no military tribunal or commission established at this time to try any captured 

terrorists. However, the President arguably could establish one without seeking additional authority from Congress if the constitutional prerequisites exist. In Quirin, the Supreme Court recContinued

mission of al-Qaeda members captured in Afghanistan, regardless of how it would 

treat defendants in this country. As discussed more fully later in this memorandum, 

international law would permit such treatment. Moreover, the Supreme Court has 

approved the use of military commissions to try enemies captured overseas for violations of the laws of war.9 In addition, the Court has suggested that a broad range 

of individuals (including ‘‘civilians’’) may be subject to military justice in an actual 

theater of operations.10

Whether the United States may constitutionally subject individuals associated 

with the alQaeda network to trial by military commission in the United States in 

the absence of a formally declared war is far less clear. There certainly is some support, based upon the applicable rules of international and constitutional law, for the 

proposition that a formal declaration of war by Congress would, in the current situation, be unnecessary to such proceedings, because a ‘‘state of war’’ between the 

United States and Afghanistan can nevertheless be said to exist. Much of Quinn’s reasoning does not depend on a formal declaration of war, and there are other historical precedents that would support the creation of military tribunals to try alQaeda terrorists. 

At the same time, it has long been recognized that the authority available to the 

government in time of an ‘‘undeclared’’ or ‘‘limited’’ war is less expansive than that 

available during a declared war. Moreover, in the past 50 years, the Supreme Court 

has become more protective of civil liberties, and it is less likely to defer as extensively to the political branches in time of war or national emergency as it once did. 

Thus, heavy reliance on historical examples from the 19th century or one decision 

from the mid-20th century is ill advised. 

In the absence of a formal declaration of war, we simply cannot predict with a 

high degree of certainty which way the Supreme Court would rule. Because the 

matter is in doubt, we believe that Congress should formally declare war before the 

United States resorts to the use of military commissions, so as to place the use of 

such extraordinary measures on the best possible legal footing. 

LEGAL PRECEDENTS REGARDING THE TRIAL OF CIVILIANS IN MILITARY COURTS

In the past, the United States has treated individuals accused of terrorism as civilians, subject to trial in the federal courts established under Article III of the Constitution, with the full application of the Bill of Rights, including the right to a public trial by jury and the Federal Rules of Criminal Procedure. This was the case, 

for example, following the first attack on the World Trade Center in 1993. A total 

of 15 terrorists, including Sheikh Omar Abdel Rahman, an Egyptian cleric and leader of the radical group al-Gaina’a al-Islamiya, were tried and convicted in the course 

of three trials in federal court in New York. Moreover, such treatment may have 

been constitutionally mandated, since civilians are not ordinarily subject to military 

justice and must be tried for federal crimes in Article III courts. 

This point was made clear by the Supreme Court shortly after the Civil War (during which civilians were subjected to trial by ‘‘military commission’’ in certain cases) 

in the landmark case of Ex pane Milligan.11 There, the Court ruled that military 

justice ‘‘can never be applied to citizens in states which have upheld the authority 

of the government, and where the courts are open and their process unobstructed.’’ 12

The Quirin Case represents a narrow exception to the rule adopted by the Milligan Court that would permit individuals who are not enlisted in a regular military 

force to nevertheless be subjected to military law, and to be tried by military commissions. In that case, the Supreme Court ruled that eight Nazi agents, who had 

secretly entered the United States to undertake acts of sabotage, could be tried by 

a military commission established, pursuant to statute, by President Franklin D. 

Roosevelt.13 The Court carefully distinguished Milligan, noting that the defendant 

454

ognized that the Constitution ‘‘invests the President, as Commander in Chief, with the power 

to wage war which Congress has declared, and to carry into effect. . .all laws defining and punishing offenses against The Law of Nations, including those which pertain to the conduct of war.’’ 317 U.S. at 26. At that time, the Court found it unnecessary to determine whether the 

President had inherent authority to constitute a military tribunal to try the saboteurs, because 

he had been expressly given this authority by Congress through the Articles of War. See 317 

U.S. at 27 (citing Articles of War 12, 15). The same relevant provisions of the Articles of War 

have been carried over into the Uniform Code of Military Justice (UCMJ). See 10 U.S.C. §§ 818, 

821; see also Michael A. Newton, Continuum Crimes: Military Jurisdiction over Foreign Nationals Who Commit International Crimes, 153 Mil. L. Rev. 1, 4 (1996) (‘‘American commanders 

have authority to convene a general courtrnartial or a military commission to punish foreign 

nationals who violate the laws of war during an international armed conflict.’’); Marc L. Warren, 

Operational Law: A Concept Matures, 152 Mil. L. Rev. 232, 305 (1996) (‘‘The United States refrained from trying any of the [Somali] detainees (many of whom were unlawful combatants or 

common criminals) by military commission or general court-martial as it could have under Articles 18 and 21 of the UCMJ and under the law of anned conflict.’’). While the use of the existing 

military court martial system to try al-Qaeda members would not present any constitutional 

issues that are different from those implicated by the use of military commissions, UCMJ strictures specifically define categories of persons who may be tried by courts martial, and unlawful 

combatants do not appear to fit into any of the current categories. See 10 US. C. § 802 . Congress could, of course, amend the UCMJ to remove this obstacle. Moreover, nothing prevents 

the President, having created a specialized military commission to deal with unlawful combatants, to instruct it to operate in accordance with the standard procedures followed by courts 

martial. 14For the purposes of this discussion, the terns ‘‘belligerents’’ and ‘‘combatants’’ are interchangeable. ‘‘Belligerents’’ was more in vogue during an earlier era, but carries no different 

meaning in the authorities cited herein. 15 Emmerich de Vattel, The Law of Nations, 481 (Luke White ed., Dublin 1792). The Quirin

Court noted a number of later authorities supporting the general proposition that ‘‘unlawful’’

combatants are generally considered to be subject to summary disposition. See 317 U.S. at 35–

36 & n.12. See also Instructions for the Government of Armies of the United States in the Field, 

General Orders, No. 100, April 24, 1863, reprinted in 7 John Moore, A Digest of International 

Law § 174 (1906) (‘‘ [m] en, or squads of men, who commit hostilities. . .without being part and 

portion of the organized hostile army, and without sharing continuously in the war, if captured, 

are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway 

robbers or pirates.’’).

there was ‘‘a non-belligerent, not subject to the law of war.’’ In Quirin, by contrast, 

the individuals were considered to be ‘‘belligerents’’ or ‘‘combatants,’’ 14 although not 

formally enlisted in the German Wehrmacht. Thus, they were classified as ‘‘unlawful belligerents,’’ subject to trial in military commissions for violations of the laws 

of war. 

It is this authority under which Osama bin Laden and his associates could be subjected to trial by military cormnission. There are, however, two conditions that must 

be satisfied before such proceedings can be employed. First, the accused individuals 

must be properly classifiable as ‘‘unlawful combatants,’’ a status that only arises in 

the context of an ‘‘armed conflict.’’ Second, the United States must itself be in a 

‘‘state of war.’’

ARE MEMBERS OF AL-QAEDA ‘‘UNLAWFUL COMBATANTS’’? 

Under the traditional rules of international law, individuals who engage in warlike activity, but who do not enjoy the immunities associated with enlistment in a 

lawful military organization, are treated harshly. As explained by Emmerich de 

Vattel, a leading 18th century scholar of international law who had a profound influence on the Framers of the U.S. Constitution:

11When a nation or a sovereign has declared war against another sovereign 

by reason of a difference arising between them, their war is what among 

nations is called a lawful war, and in form; and as we shall more particularly shew the effects by the voluntary law of nations, are the same on both 

sides, independently of the justice of the cause. Nothing of all this takes 

place in a war void of form, and unlawful, more properly called robbery, 

being undertaken without right, without so much as an apparent cause. It 

can be productive of no lawful effect, nor give any right to the author of 

it. A nation attacked by such sort of enemies is not under any obligation 

to observe towards them the rules of wars in form. It may treat them as 

robbers. The city of Geneva, after defeating the attempt of the famous 

Escalde hung up the Savoyards, whom they had made prisoners, as robbers 

who had attacked them without any cause, or declaration of war. Nobody 

offered to censure this proceeding, which would have been detested in a formal war.15

455

16Protocol I Additional to the Geneva Conventions of 1949, which the United States has never 

ratified, but which embodies norms of customary international law in at least some respects, 

suggests that even unlawful combatants must be treated ‘‘humanely’’ and provided with certain 

basic due process guarantees. See Protocol I Additional to the Geneva Conventions of 1949, Art. 

75(1) (4). This instrument does not, however, suggest that the use of a military tribunal or commission to try unlawful combatants would be impermissible. 17See Annex to Hague Convention (IV) Respecting the Laws and Customs of War on Land 

(1907), Art. 1. It should be noted that this requirement refers to the actions and institutional 

policy of the group involved, rather than to the acts of individuals. An individual may qualify 

as a lawful combatant, being associated with an armed force with a recognizable command 

structure, wearing distinctive emblems, carrying arms openly, and conducting its operations in 

accordance with the laws of war, and still be subject to prosecution for ‘‘war crimes’’ based on 

individual actions. 18 317 U.S. at 36. 19Some authors have suggested that, given the gravity of offenses committed by terrorists of 

various stripes and the serious threat they pose to the security of the United States, all such 

persons should be tried by military commissions. See Spencer J. Crona, ‘‘Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism,’’ 21 Okla. City U. 

L. Rev. 349 (1996). However, there is no support, either in the Constitution or in the Supreme 

Court’s precedents, for subjecting individuals, who do not otherwise qualify as unlawful combatants on behalf of a hostile foreign power, to such proceedings. Civilians, even those accused of 

‘‘terrorism,’’ like Timothy McVeigh or Theodore Kaczynski, who do not fall within the category 

of unlawful combatant as defined by international law, must be tried in Article III courts. 20See Yamashita, 327 U.S. at 11–12. The issue here is more complex when a noninternational, or ‘‘internal’’ armed conflict, such as a civil war, is at issue. In such cases, the conflict 

must reach a certain level of intensity and duration before the laws of war will apply. See AntoContinued

Whether, under current international norms, an unlawful combatant may be 

killed out of hand, as Vattel suggests, is highly debatable.16 Nevertheless, it is clear 

that such individuals—both substantively and as a procedural matter—are not entitled to the same rights as lawful combatants (who must be treated as prisoners of 

war), or of non-combatants. ‘‘Lawful Combatants.’’ The question of who is an ‘‘unlawful combatant’’ depends, 

in the first instance, on who qualifies as a ‘‘lawful combatant.’’ Although irregular or ‘‘guerrilla’’ forces are not automatically excluded from this category, in order to 

be treated as ‘‘lawful combatants’’ or ‘‘lawful belligerents’’ (entitled to be treated as 

such under the laws and customs of war), a group must meet the following basic 

requirements according to the governing Hague Convention:

1. They must operate under a recognizable command structure; 

2. Their members must wear a uniform or other ‘‘fixed distinctive emblem 

recognizable at a distance’’; 

3. Their members must carry arms openly; and 

4. They must conduct their operations in accordance with the laws and customs of war.17

The al-Qaeda organization, although it may or may not satisfy the first requirement, obviously fails to meet the last three. As a result, its members may be treated 

as ‘‘unlawful combatants’’ under international law. 

Similarly, under United States domestic law, al-Qaeda’s members also may be 

considered to be ‘‘unlawful combatants.’’ The United States became a party to the 

Hague Convention (IV) on January 26, 1910, and the definitions contained in that 

instrument are fully applicable under U.S. law. They also are entirely consistent 

with the working definition of ‘‘unlawful combatant’’ adopted by the Supreme Court 

in Quirin. There, the Court explained that ‘‘unlawful combatants’’ are individuals 

who associate themselves with an enemy of the United States and who:

[d]uring time of war pass surreptitiously from enemy territory into our own, 

discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property.18

The members of al-Qaeda who carried out the September 11 attacks, and their 

surviving compatriots, clearly entered the United States out of uniform and for the 

purpose of committing hostile acts involving the destruction of life and property 

here.19 The critical question, however, is whether they acted as enemies of the 

United States during ‘‘time of war.’’

DOES A STATE OF WAR EXIST? 

INTERNATIONAL LAW

Under both international and domestic law, the laws of war apply from the beginning of an international armed conflict until its conclusion.20 There is little doubt 

456

nio Cassese, ‘‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and 

Customary International Law,’’ 3 Pac. Basin L. J. 55, 105, 112 (1984); ‘‘The Spanish Civil War 

and the Development of Customary Law Concerning Internal Anned Conflicts,’’ Current Problems of International Law: Essays on United Nations Law and the Law of Armed Conflict 288 

(A. Cassese ed., 1975). 21See Bob Woodward, ‘‘Bin Laden Said to ’Own’ the Taliban,’’ The Washington Post, October 

11, 2001, at Al. 22 In addition, since 1996, al-Qaeda has carried out a number of armed attacks against the 

United States, including the destruction of U.S. embassies in East Africa; assaulting an American warship, the U.S.S. Cole, in the harbor of Aden, Yemen; and the bombing of the Khobar 

Towers in Dhahran, Saudi Arabia, which housed hundreds of U.S. service members. The Taliban 

was fully aware of each of these actions and yet failed to take action against alQaeda. Although 

a high level of control and coordination may generally be necessary in order to attribute the 

actions of a ‘‘client’’ organization to a supporting state, see Nicaragua v. United States 1986 

I.C.J. 14 (Merits) (Jun. 27, 1986) (suggesting the need for a high level of dependence and control 

before acts of irregular forces may be attributable to supporting state), that level appears to be 

fully present in this case. 23See Statement by NATO Secretary General, Lord Robertson, on the North Atlantic Council 

Decision on Implementation of Article 5 of the Washington Treaty following the I I September 

Attacks against the United States, October 4, 2001. 24 7 Moore, supra note 14, at 171. 25 Vattel, supra, at 478. At the same time, a formal declaration offers a number of tangible 

legal and practical benefits. In particular, it removes all doubt regarding the rights and obligations of both the belligerents and neutral states—which are far more ambiguous, or at least 

open to contest, in the context of an undeclared war. 

that, as an international law matter, an armed conflict now exists between the 

United States and, at a minimum, the Taliban regime in Afghanistan, and that this 

conflict has existed at least since September 11, 2001. 

This assessment is true even though the actual individuals who carried out the 

September 11 attacks appear to have been members of the al-Qaeda terrorist network. Al-Qaeda operates freely in Afghanistan with the knowledge, blessing, and 

support of the Taliban authorities. It controls a number of military bases in that 

country, and recent reports suggest that al-Qaeda may actually be the senior partner, vis-a-vis the Taliban, in controlling Afghanistan.21 Significantly, al-Qaeda 

forces are engaged together with Taliban forces in fighting the Northern Alliance, 

a loose coalition of resistance fighters. Moreover, the Taliban’s most elite military 

unit, the 55th Brigade, is said to be comprised mostly of al-Qaeda members.22

There clearly is an identity of interest and action between al-Qaeda and the 

Taliban sufficient to justify the United States in characterizing the attacks of September 11 as an ‘‘act of war’’ and to justify a military response. Here, an analogy 

may be drawn to the response of the United States to the depredations of the Barbary pirates, operating out of Tripoli, in 1802. At that time Congress, on February 

6, 1802, authorized the President to use force, including all ‘‘acts of precaution or 

hostility as the state of war will justify, and may, in his opinion require.’’ Moreover, 

America’s NATO allies have accepted this characterization and have, accordingly, 

taken action to ‘‘operationalise’’ Article 5 of the North Atlantic Treaty, which requires that an ‘‘armed attack’’ against one member of the alliance is to be considered 

an attack on all.23

The fact that the United States has not chosen to declare war on Afghanistan, 

the Taliban, or alQaeda does not change the conclusion under international law that 

a state of war exists. International law has long recognized that ‘‘a formal declaration is not necessary to constitute a state of war,’’ 24 and, in particular, that an 

anned attack creates a state of war without the necessity of the defending state declaring war. Again, to quote Vattel: ‘‘[h]e who is attacked and makes only a defensive war, need not declare it, the state of war being sufficiently determined by the 

declaration of the enemy, or his open hostilities.’’ 25

Consequently, as a matter of international law, the United States is at war and 

would be fully justified in treating the al-Qaeda members it encounters (and any 

Taliban forces who do not behave in a manner so as to qualify as lawful combatants) 

as ‘‘unlawful combatants,’’ subject to proceedings before a military court. 

U.S. DOMESTIC LAW

Whether a ‘‘state of war’’ can be said to exist between the United States and the 

Taliban/alQaeda as a matter of U.S. domestic law, however, is a more difficult question. 

Although the Quirin Court made clear that a ‘‘state of war’’ was necessary before 

individuals arrested in the United States could be subjected to trial by military commission, it did not specifically address the question of how this state of war was 

to be brought about. The text of the Constitution, however, does specifically address 

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26 U.S. Const., Art. I, § 8, cl. 11. 27See James Madison, Notes of Debates in the Federal Convention 476–77 (Koch ed., 1966). 28See Alexander Hamilton, ‘‘The Examination, No. 1, 17 Dec. 1801,’’ reprinted in, 3 The 

Founder’s Constitution (Kurland & Lemer eds. 1987). 29The Supreme Court also has recognized that a ‘‘state of war’’ could be created by the actions 

of another power. See The Pedro, 175 U.S. 354, 363 (1899) (recognizing that war with Spain 

began prior to actual declaration by Congress based upon declaration of Spanish government). 30 4 U.S. 37, 43 (1800). 31 5 U.S. 1, 28 (1801) (emphasis added). 32The Court has indicated, however, that during the limited war the relevant limitations 

must be scrupulously respected. In Little v. Barreme, 6 U.S. 170, 177 (1804), for example, the 

Supreme Court struck down a presidential proclamation authorizing the interception of vessels 

sailing from or to France, reasoning that Congress had, by statute, allowed only the interception 

of vessels sailing to French ports. 

this issue—it grants to Congress the power to ‘‘declare war.’’ 26 By that phrase, the 

Constitution’s Framers understood the power to create a state of war between the 

United States and another power, for they carefully distinguished this power from 

the power to ‘‘make’’ war, i.e., to use military force, which is vested in the President 

as Chief Executive and Commander in Chief of the armed forces.27 This division of 

authority made eminent sense, since, unlike the use of armed force, a formal declaration of war worked a number of important legal changes (permitting, for example, the expulsion or internment of enemy aliens and the seizure of their property) 

more appropriate to the legislative, rather than the executive, branch. 

The actual meaning of this constitutional provision, however, became a matter of 

dispute almost immediately among the Founding generation itself. For example, in 

1793 James Madison and Alexander Hamilton clashed, in the ‘‘Helvidius/Pacificus’’

debate, over whether President Washington had the power, on his own authority, 

to issue a proclamation of neutrality with respect to the war between Britain, her 

allies, and Jacobin France. These early disagreements included the question of 

whether a declaration of war was necessary for any U.S. military action. During the 

conflict between the United States and the Barbary Pirates, for instance, the Jefferson Administration evidently took the position that a declaration by Congress was 

necessary before the United States could seize Algerian vessels on the high seas. 

Alexander Hamilton took particular umbrage at this view, writing that a state of 

war ‘‘between two nations is completely produced by the act of one—it requires no 

concurrent act of the other.’’ He further noted that the Constitution did not incorporate such a rule, claiming that ‘‘[t]he framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. . . .[W]hen a foreign nation declares, or openly and avowedly makes war 

upon the United States, they are then by the very fact, already at war, and any 

declaration on the part of Congress is nugatory: it is at least unnecessary.’’ 28

Hamilton’s view, at least for certain purposes, prevailed. The Supreme Court recognized very early that some form of a ‘‘state of war’’ could exist without a formal 

declaration by the United States.29 Barely 10 years after the Constitutional Convention, a naval war erupted between France and the United States—the so-called 

Quasi-War. In two cases involving the disposition of ships captured by the U.S. 

Navy during this conflict, the Supreme Court acknowledged that the United States 

could wage a limited war, which was not based on a formal declaration, but was 

instead governed by several federal statutes. It made clear, however, that a limited 

war brought only restricted war-related powers into play. As explained by Justice 

Chase in Bas v. Tingy

Congress is empowered to declare a general war, or congress may wage a limited 

war; limited in place, in objects and in time. If a general war is declared, its extent 

and operation are only restricted and regulated by the jus belli, forming a part of 

The Law of Nations; but if a partial war is waged, its extent and operation depend 

on our municipal [domestic] laws.30

Similarly, as Justice John Marshall explained in Talbot v. Seeman

The whole powers of war being, by the constitution of the United States, vested 

in congress, the acts of that body can alone be resorted to as our guides in this 

enquiry. It is not denied, nor in the course of the argument has it been denied, that 

congress may authorize general hostilities, in which case the general laws of war 

apply to our situation; or partial hostilities, in which case the laws of war, so far 

as they actually apply to our situation, must be noticed.31

Thus, although the United States government can only obtain all of the potential 

‘‘war powers’’ available to it under the Constitution through a formal declaration of 

war, it may nevertheless exercise some lesser measure of that power during a partial or limited war.32 With respect to any particular power, the test articulated by 

458

33 It should also be noted that the Supreme Court has ruled that the United States could be 

considered to be ‘‘at war’’ without a formal declaration in the case of undeclared or ‘‘limited’’

wars with the Indian Tribes. See Montoya v. United States, 180 U.S. 261, 267 (1901) (‘‘We recall 

no instance where Congress has made a formal declaration of war against an Indian nation or 

tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially 

if the Government has deemed it necessary to dispatch a military force for their subjugation, 

is sufficient to constitute a state of war.’’). 34See generally, Carol Chomsky, ‘‘The United States-Dakota War Trials: A Study in Military 

Injustice,’’ 43 Stan. L. Rev. 13 (1990) (criticizing the practice of using military tribunals for this 

purpose). 35 354 U.S. at 21. 36 317 U.S. at 26 (emphasis added). 37 Rehnquist, All the Laws But one, supra at 218. 

the Supreme Court is whether it is necessary or ‘‘actually applicable’’ to the level 

of hostilities Congress has authorized. A reasonable argument can be made that this 

lesser measure includes the right to subject unlawful combatants to trial by military 

courts, because the laws of war dealing with unlawful combatants are so basic to 

any level of hostilities-dealing with the questions of who may lawfully take part in 

a conflict, and how they must be treated upon capture or defeat—that they always 

apply when the United States is engaged in an armed struggle. This would support 

the legality of subjecting unlawful combatants, such as the members of alQaeda, to 

trial by military courts where Congress has authorized hostilities, even though it 

has not formally declared war.33

Nevertheless, subjecting civilians—even as unlawful combatants—to military justice, and particularly to the type of military commission at issue in Quirin, is an 

extraordinary measure in recent times. Military commissions were used in such conflicts during the early- to mid-19th century. In 1862, for example, 37 Dakota Sioux 

Indians were executed in Minnesota. These individuals were tried before a fivemember military commission for the massacre of settlers along Minnesota’s western 

borderlands.34 Yet, there are relatively few instances of such proceedings since the 

1860s. Quirin represents the only instance in which the Supreme Court specifically 

approved, in the face of a constitutional attack, the use of military commissions in 

the United States to try individuals not otherwise subject to military justice. Moreover, in the years after Quirin was decided, the Court returned to a far more circumspect attitude toward the government’s ability to employ military justice vis-avis individuals not actually enrolled in military service. In Reid v. Covert (1952), 35

for example, the Court ruled that the civilian dependents of armed service members, 

even when overseas, could not be subjected to military courts, noting that: 

the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language of Art. I, § 8, and, at most, was 

intended to be only a narrow exception to the normal and preferred method 

of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts 

as a deprivation of the right to jury trial and of other treasured constitutional protections.

Moreover, the fact remains that the Quirin Court itself addressed a situation that 

involved a formally declared state of war. Following Hitler’s declaration of war on 

the United States on December 11, 1941, Congress immediately declared that a 

state of war existed between the United States of America and the government of 

Germany, in addition to authorizing the President to use ‘‘the entire naval and military forces of the government to carry on war against the Government of Germany.’’

This fact was noted by the Quirin Court in its decision, in particular with respect 

to its discussion of the constitutional issues presented by that case:

The Constitution thus invests the President as Commander in Chief with 

the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against The Law of Nations, including those which pertain 

to the conduct of war.36

Citing other opinions from World War I and II, Chief Justice Rehnquist recently 

wrote that ‘‘[w]ithout question the government’s authority to engage in conduct that 

infringes civil liberties is greatest in time of declared war.’’ 37 Thus, it is possible 

that the Court would have reached a different conclusion i11 1942 if Congress had 

not invoked the full war powers available to the United States, under the Constitution as well as The Law of Nations, through a formal declaration of war. Although 

Congress, in its Joint Resolution of September 18, 2001, has invoked a broad range 

of the war powers of the United States, authorizing the President ‘‘to use all necVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00094 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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38 New York Times Co. v. United States, 403 U.S. 713 (1971). It is true that the Pentagon Papers case involved a prior restraint of speech, and this does distinguish it somewhat from the 

facts of the World War I cases, but the majority that ruled against the United States in 1971 

would not have likely upheld the conviction of Jacob Abrams in 1919. A simple comparison of 

the majority’s discussion of the issues in Abrams v. United States, 250 U.S. 616 (1919) with that 

in the Pentagon Papers case will reveal a marked difference i11 the deference the Court accords 

the executive branch. 39 Rehnquist, All the Laws But one, supra at 224–25. 

essary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001,’’ it has not formally declared a state of war to exist. 

Perhaps even more important than the precise differences between the current 

situation and that in 1942 is that the Supreme Court has become far more protective of civil rights and civil liberties in the past 50 years. It can even be said that 

it views the protection of civil rights and civil liberties as its special and unique role 

in the national government and the federal scheme. The Pentagon Papers case is 

an example of how much more protective of civil liberties the Court was in 1971 

than it was earlier in the century. The national security risk posed by the disclosure 

of a classified history of America’s involvement in Vietnam was probably far greater 

than that posed by journalists and pamphleteers opposed to World War I. Nevertheless, the Court refused to defer to the judgment of the executive branch in 1971 and 

created a standard that was either impossible for the government to meet (in the 

case of two concurring justices) or was at least much more difficult to meet.38

Indeed, Chief Justice Rehnquist ends his book on civil liberties in wartime by contrasting the modern Court with earlier judges who seemed to adopt the Latin 

maxim, Inter arma silent leges: In time of war the laws are silent. His concluding 

remarks have an independent significance given his role on the High Court. 

[T]here is every reason to think that the historic trend against the least justified 

of the curtailments of civil liberty in wartime will continue in the future. It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that 

more careful attention will be paid by the court on the basis for the government’s claims of necessity as a basis for curtailing civil liberties. The laws will thus not 

be silent in time of war, but they will speak with a somewhat different voice.39

Given the evolution of the Supreme Court’s exercise of authority, we believe some 

justices of the Supreme Court today might not reaffirrn Quirin even if the facts 

were identical to that in 1942. This may also render earlier historical precedents 

of limited value in predicting which way the modern Court would rule. 

Despite this evolution in the Supreme Court’s independent role, we believe a majority of the Court today would feel constrained to follow its decision in Quinn if 

Congress declared war on the Taliban/al-Qaeda. But the absence of a formal declaration of war might lead several justices to distinguish Quirin, even if we believe 

the distinction is not constitutionally significant. Modern judicial activists have discarded far more established and well-reasoned cases than Quirin. Thus, in the absence of a formal declaration of war, we simply cannot say with a high degree of 

certainty which way the Court would rule. 

CONCLUSION

Although Congress has not yet issued a formal declaration of war, there is no 

doubt that, as a matter of international law, an armed conflict currently exists between the United States and the Taliban/alQaeda regime in Afghanistan. It also is 

clear that members of al-Qaeda have acted as ‘‘unlawful combatants.’’ Whether they 

can be treated as unlawful combatants under the domestic law of the United States, 

and be subjected to trial by military courts or commission, however, depends upon 

whether a ‘‘state of war’’ exists pursuant to the United States Constitution. 

There is very early support in the judicial precedents of the Supreme Court, actually decided during the active political careers of the Constitution’s Framers, suggesting that a ‘‘state of war’’ can exist between the United States and a foreign 

power without a formal declaration of war by Congress, albeit of a limited character. 

Since the question of who is a lawful and unlawful combatant is central to the law 

of war, whenever it is applicable, it can reasonably be argued that an undeclared 

war is sufficient, as a matter of constitutional law, to justify the use of military commissions to try such individuals in the United States. 

At the same time, the use of military courts to try non-military personnel is an 

extraordinary process that has been used in only very limited circumstances during 

U.S. history. The only direct and definitive authority permitting such trials remains 

the Supreme Court’s decision in Ex parte Quirin. That case involved a state of forVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00095 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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40 It should be noted, however, that once a state of war is formally declared, there appears 

to be no requirement that Congress declare war against each state in which al-Qaeda operatives 

may be discovered. Once Congress has invoked the full range of war powers by a formal declaration, those powers would continue to apply until the armed conflict is concluded. During this 

period, under Quirin’s teaching, anyone who actually qualifies as an unlawful combatant in the 

context of that conflict could be subjected to trial by military commission.

mally declared war, and this point was noted by the Court as part of its ruling. 

Other practical questions might arise in the absence of a formal declaration of war, 

including with whom the United States is at war. A formal declaration of war would 

resolve such questions and allow the President to try al-Qaeda terrorists-who have 

violated the law of wars in military tribunals. 

In the absence of a formal declaration, we believe the correct constitutional answer is less clear, and that it is even less obvious how the Supreme Court would 

rule. Thus, we believe a formal declaration of war should be sought before the 

United States employs military courts to try al-Qaeda members.40 This would place 

such tribunals, which clearly represent a departure from this country’s normal legal 

processes and traditions, on the best possible constitutional basis. 

Statement of Charles D. Siegal, Munger Tolles & Olson, Los Angeles, CA, on 

behalf of Human Rights Committee 

f INTERNATIONAL LAW AND CONSTITUTIONAL LAW RAMIFICATIONS OF THE PRESIDENT’S

Military Order of November 13, 2001 I Dear Senator Leahy, Senator Feinstein 

and Other Members of the Judiciary Committee: 

The Human Rights Committee of the American Branch of the International Law 

Association writes to express its views concerning the November 13, 2001 Military 

Order on The Detention, Treatment, and Trial of Certain Non-Citizens In The War 

Against Terrorism (‘‘Order’’). For the reasons that follow, we consider the Order to 

be in violation of long-standing principles of international law and to raise significant and troubling United States constitutional law concerns. 

The Human Rights Committee of the American Branch of the International Law 

Association (‘‘Human Rights Committee’’) has a longstanding interest in the progressive development of the international legal order, the rule of law and the protection 

of fundamental human rights. It is comprised of individuals from the academic, public and private sectors who have extensive experience in the field of international 

law and, specifically, human rights law. Members of the Human Rights Committee 

have taught subjects such as international law, foreign relations law, human rights 

law and constitutional law and have written extensively in these fields. They have 

participated extensively at the trial and appellate court levels, including the United 

States Supreme Court, and have litigated cases involving the tights of aliens under 

domestic and international law. In the past, members of the Committee have testified before the Foreign Relations Committee of the United States Senate on a variety of issues, including human rights treaties. 

The Human Rights Committee would like to express its serious concerns regarding the—Order. While the Committee recognizes the importance of the struggle 

against terrorism, eve have substantial concerns that the Order violates the United 

States’ obligations under international law and the Constitution. 

1. INTERNATIONAL LAW

Military tribunals are generally suspect under human rights treaties, international criminal law, and under established human rights law. We consider the 

Order to be in clear violation of each of those bodies of law. 

A. HUMAN RIGHTS LAW

1. Due process 

The Order fails to comply with Article.14 of the International Covenant on Civil 

and Political Rights (ICCPR), to which the United States is a party and which sets 

forth a minimum set of customary and treaty-based human rights to due process 

guaranteed to all persons by customary international law, the ICCPR, and thus also 

by and through Articles 55(c) and 56 of the United Nations Charter. This treaty has 

become increasingly important as a source of human rights and the United States 

should, as a matter of policy, and must, as a matter of legal obligation, follow it. 

461

1Further, with respect to prisoners of war, the Order is violative of the 1949 Geneva Prisoner’

of War Convention, especially articles 102 and 130. 

The rights guaranteed by the ICCPR include the right to a fair hearing by an 

independent and impartial tribunal, the right to know, the charges, the right to 

have defense counsel of choice, the right to examine and cross examine witnesses, 

the right to present witnesses and other evidence, and the right to an appeal to a 

higher tribunal. The Order fails to meet the ICCPR’s minimum due process requirements in virtually all respects. 

The Order is also defective as it is overly broad and open-ended, with no defined 

standards of uniform application. Under this Order, the Secretary of Defense is empowered to be the sole authority to decide if there is reason to believe that any nonUnited States citizen (including long-time United States lawful permanent residents) anywhere in the-world might have committed or attempted to commit ‘‘violations of the laws of war and other applicable laws.’’ Individuals who are deemed 

subject to this Order include any non-citizen who has ‘‘aided or abetted, or conspired 

to commit acts of international terrorism. . .that threaten to cause or have as their 

aim to cause. . .adverse effects on the United States foreign policy or economy.’’

Under the language of the Order, a long-term United States permanent resident 

who has. . .written articles and made speeches criticizing the foreign policy of the 

United States and calling for a worldwide boycott of American-made products and 

for other forms of direct action might be subject to prosecution before a ’military 

court. It is not enough to say that no United States Secretary of Defense would be 

so rash or foolish enough to pursue such a prosecution. The fact—that such an act 

could be treated as a terrorist act subject to the jurisdiction of the specially created 

military tribunal proves the point that such a system lacks the checks and balances 

necessary to prevent such an injustice. 

The Order denies the accused the basic international human right to appellate review. The Order dispenses with the need for a unanimous verdict by providing that 

a conviction and sentence, including the death penalty, maybe imposed upon only 

a two-thirds vote. This is in sharp contrast to the procedures followed not only by 

our federal and state courts, but also by our military courts under the Uniform Code 

of Military Justice. We note that Section 836 of the United States Code, relied upon 

by as authority for the Order, requires that military commissions shall, if practicable, apply the -principles of law and the rules of evidence recognized in the trial 

of criminal cases in the United States district courts. Nowhere does the Order articulate a basis why it is not practicable to apply the principles of law and-rules of 

evidence followed in the district counts. Indeed, the recent successful prosecution in 

the Southern District of New York of the perpetrators of the African Embassy bombings demonstrates that the principles and rules followed in the United States district courts can most certainly be applied to other terrorists as well.1

2. NON-DEROGATION

Major human rights treaties contain ‘‘derogation’’ clauses that govern the suspension of rights during states of emergency that threaten the life of the nation. The 

Article 4 of the ICCPR limits derogation as follows: 

1. Rights may be suspended only during a state of emergency that threatens the 

life of the nation. To justify a suspension of fair trial rights guaranteed by the 

ICCPR, the United States must prove that it faces a threat to the life of the nation. 

This is a very high threshold. An ongoing risk of terrorist violence is a permanent 

condition for contemporary democratic states. The ‘‘life of the nation’’ is not imperiled by the United States military action in alliance with the Afghan Government. 

2. Certain rights are non-derogable and may not be suspended even if the life of 

the nation is at stake. These include, most relevantly in the current context, the 

right to life; the prohibition on torture and cruel, inhuman and degrading treatment 

or punishment; the prohibition on retroactive criminal penalties; the right to recognition as a person before the law; and freedom of thought, conscience, and religion. 

3. Derogation measures may not be applied in a discriminatory manner. Where 

rights are suspended during a genuine state of emergency, derogation measures 

may not be applied in a manner that discriminates on the basis of race, color, sex, 

language, religion, or social origin. 

4. Any derogation measures must be strictly required by the exigencies of the situation. The ICCPR and regional human rights treaties establish a very strict rule of 

proportionality to emergency measures taken in derogation of human rights. Only 

measures that are vital to preserving the life of the nation are permitted. 

462

5. Measures in derogation of the right to fair trial and the right to take judicial 

proceedings to determine the lawfulness of detention are strictly limited and largely 

forbidden. has been suggested that his military commissions are necessary to protect jurors, However, there is no evidence that jurors in prior cases against Al 

Qaeda operatives have been menaced in any way. Successful prosecutions for Al1 

Qaeda crimes have recently been completed both in Los Angeles and in New York. 

The federal courts are actively processing charges against persons arrested in the 

post-September 11 dragnet. The United States Government may find these prosecutions to be inconvenient, especially where it lacks evidence of the detainee’s guiltThis is why the derogation clause of the ICCPR is narrowly written, 

The Administration has also suggested that one purpose of the commissions is to 

permit the use of coerced testimony inadmissible under the Fifth Amendment. The 

desire to use secret evidence is also cited, although the ordinary federal courts have 

provisions for use of classified information in carefully delineated circumstances. 

Decades of practice under the derogation clauses of human rights treaties have 

resulted in the emergence of important principles that apply to the Order. The 

Human Rights Committee, the UN treaty body that implements the ICCPR, issued 

an interpretive ‘‘General Comment’’ on the derogation clause in August 2001. Relevant passages of General Comment No. 29 state:

Measures derogating from the provisions of the Covenant must be of am exceptional and temporary nature. . . . Not every disturbance or catastrophe qualifies as a public emergency which 

threatens the life of the nation. . . . It is inherent in the protection of (non-derogable] rights that they must be 

secured by procedural guarantees, including, often, judicial guarantees. The 

provisions of the Covenant relating to procedural safeguards may never be 

made subject to measures that would circumvent the protection of nonderogable rights. . . . Thus, for example, as article 6 [on the right to life] 

is non-derogable in its entirety, any trial leading to the imposition of the 

death penalty-during a state of emergency must conform to the provisions 

of the Covenant, including all the requirements of articles 14 [fair trial] and 

15 [prohibition on retroactive criminal 

Safeguards related to derogation. . . are based on the principles of legality and 

the rule of law inherent in the Covenant as a whole. As certain elements of the right 

to fair trial are explicitly guaranteed under international humanitarian law during 

armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the 

principles of legality and the rule of law require that fundamental requirements of 

fair trial must be respected during a state of emergency. Only a court of law may 

try and convict a person for a criminal offence. The presumption of innocence must 

be respected. In order to protect non-derogable rights, the right to take proceedings 

before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State, party’s decision to derogate from the Covenant.

The United Nations Human Rights Committee, the European Court of Human 

Rights, and the Inter-American Court of Human Rights have examined many situations involving purported emergencies. A-recurring issue has been the trial of civilians, suspected of terrorist offenses, by secret military tribunals. For example, Peru. 

has been condemned by the Inter-American Court for this practice. An American citizen, Lori Berenson, was convicted of terrorist offenses by Peruvian ‘‘faceless judges’’ in a proceeding criticized by the United States. . . Government as a deprivation of 

fundamental human rights. When Turkey obtained custody of Abdullah Ocalan, the 

notorious leader of the PKK with a ‘‘terrorist’’ reputation to rival that of Osama Bin 

Laden, it placed him on trial before a National Security Court, but quickly amended 

its legislation to provide that only civilian judges could preside and held the trial 

in public. International human rights officials were given access to Ocalan in order 

to insure that he was not subjected to torture or cruel treatment The legality of 

Ocalan’s trial remains under consideration by the European Court of Human Rights. 

6. No derogation is valid unless the state proclaiming the emergency provides official ’ notification of the provisions from which it has derogated and of the reasons 

why it imposed these speck emergency measures. 

B. HUMANITARIAN LAW

Military commissions may be established in the aftermath of international armed 

conflict to try persons who have committed war crimes or crimes against humanity 

in connection with the conflict. The Nuremberg Tribunal is one example. * Military 

commissions were also established under Control Council Law No. 10 to try Nazi 

463

2One, of the habeas corpus petitioners in Duncan was convicted of assaulting military police 

at a shipyard; the other was convicted of fraud. The Court recognized that Hawaii was in the 

‘‘theater’’ of the Second World War, but held this fact did not justify trial by military commission 

where the civil courts were capable of functioning. 3Common crimes’’ is a legal term denoting criminal offenses that are not war crimes or political offenses. ‘‘Common crimes’’ may of course be unusual or extraordinary, as were the attacks 

of September 11. Some crimes committed by terrorists are ‘‘international,’’ in one of two reContinued

war criminals, some of whom were civilians who. . . had committed crimes against 

humanity, such as enslavement, as part of the Nazi war effort. . . Trial by such 

military commissions was approved in In re Yamashita, 327 U.S. 1 (1946). The— defendant in Yamashita was a Japanese general charged with war crimes—a com- batant enemy alien in a declared international armed conflict. It is noteworthy that 

Yamashita appears in the. same volume of the United States Reports as Duncan v. Kahanamoku, which struck dozen trials by military commissions of civilians 

charged with common crimes committed in the ‘‘theater of war.’’ 2

The United States could request the United Nations Security Council to establish an ad hoc international criminal tribunal to try crimes against humanity and other 

crimes of international significance committed by members of Al Qaeda or other suspected terrorists. Such trials Would be conducted in compliance with principles of 

international law relating to fair trial, as described below. The United States may 

not create it own ad hoc commissions, lacking guarantees of fundamental fairness, 

as an alternative, simply because terrorist crimes are perceived as unusually grave 

or difficult to prosecute. The United States should apply to Al Qaeda the policies 

it has willingly and successfully advocated for other groups that have committed 

gross violations of human rights, The International Criminal Tribunals for Former 

Yugoslavia and Rwanda have performed valuable services both in bringing violators 

of international criminal law to justice and in setting standards for the proper trial 

of suspected violators. A similar tribunal for suspected terrorists would serve the 

same salutary function. 

II. CONSTITUTIONAL LAW

The Order raises serious constitutional concerns. Those concerns include: 

Whether the President may, without the approval by Congress, suspend habeas corpus? In Ex pane Milligan, 71 U.S. 22 (1866) the Supreme Court ruled that the military lacks any constitutional power even in a time of war to substitute its tribunals 

for civil courts that are open and operating, and held that only Congress may declare martial law. The Court subsequently reaffirmed this bedrock constitutional 

principle in the World War II era case of Duncan v. Kahanmoku, 327 U.S. 304 

(1946), when it invalidated the Governor of Hawaii’s suspension of the writ of habeas corpus and.the implementation of military tribunals:

Only when a foreign invasion or civil war actually closes the courts and 

renders it impossible for them to administer criminal justice can martial 

law validly be involved to suspend their functions. Even the suspension of 

power under those condition is of a most temporary character.

Whether the President can create military commissions for use in a non-war context for prosecution of nonbelligerents for crimes other than war crimes? Case law 

indicates that whatever powers the President may have as Commander in Chief to 

order trial by a military. commission, such powers do not extend beyond wartime 

or a war context. The Order is open ended and contains no such limitations. Indeed 

by the President’s own admission, the ‘‘war’’ on terrorism is without apparent end 

and is envisioned to last for the indefinite future. Without a formal declaration of 

war, there can be no official declaration of peace, and the Order might remain in 

effect for generations, to come. 

Whether the proposal to subject civilians to trial by military commission violates 

the text of the Fifth Amendment? The amendment reads: ‘‘no person shall be held 

to answer for a capital 1or otherwise infamous crime unless on presentment by a 

grand jury, except in-cases arising in the lancer or naval forces, or in the militia, 

when in actual service in time of war or public danger, nor be deprived of life, liberty, or property, without due process of law’’ (emphasis added). The argument is 

made that if United States military personnel are subject to military justice, then 

foreign terrorist suspects can expect no better. This argument fails for two reasons: 

(1) the Constitution itself authorizes courts martial for United States service personnel and does not authorize military trials for civilians suspected of terrorist or 

other common crimes;3 (2) the military commissions envisioned in the November 13 

Order lack the protections guaranteed to military defendants in courts martial. 

464

spects: (1) crimes such as airplane hijacking are the subject of treaties obligating states parties 

to prosecute or extradite suspects, regardless of the location where the crime was committed 

(universal jurisdiction and the principle of out dedere out judicare); (2) deliberate and systematic 

or widespread attacks against civilians by organized non-state entities may be ‘‘crimes against 

humanity’’ as defined in Article 7 of the Statute of the International Criminal Court (ICC Statute) These crimes are not ‘‘war crimes,’’ however. ‘‘War crimes’’ are only those committed in the 

context either of international armed conflict (a conflict between two or more states) or an internal armed conflict. Article 8 of the ICC Statute defines a long list of war crimes and explicitly 

states that it. ‘‘does not apply to situations of internal disturbances and tensions, such as riots, 

isolated and sporadic acts of violence or other acts of a similar nature.’’ 4The list of 93 persons charged with criminal offenses in the post-September 11, roundup; 

issued by the Department of Justice on November 27, 2001, reveals no charges relating. to war’

crimes or linked to armed conflict of any type. 5Don van Natta, Jr., ‘‘Debate Centers on Which Court Will Decide Fate of Arab Man,’’ N.Y. 

Times, Nov. 22, 2001, B6. 

Whether proposed defendants who are not ‘‘enemy aliens’’ may be subject to military trio? Ex parte Quirin, 317 U.S. 1 (1942), provides. no support for the Order. 

The defendants, in Quirin were enemy aliens tried for war crimes. ‘‘Enemy aliens’’ is a technical legal term that denotes citizens of a state with which the United 

States is at war. They are subject to special. treatment under international law and 

United States statutes dating back as early as 1798. The Supreme Court based its 

finding of legality in Quirin squarely upon the international law of war, as it then 

existed. The Court emphasized the status of the defendants as enemy combatants, 

in a declared international armed conflict, who had forfeited their status as prisoners of war by removing their uniforms and engaging in acts of sabotage. 

None of the proposed defendants in the Commissions is an ‘‘enemy alien.’’ Nor is 

the Order limited to those enemy aliens charged with war crimes committed in the 

context of any armed conflict, either international or internal.4 Indeed, Zacarias 

Moussaoui, reportedly a prime target of the Order, is a citizen of France.5 He was 

admitted to the United States and was. detained in August 2001 in Minnesota for 

suspected violations of the immigration laws. He is not a combatant in any armed 

conflict. According to news reports, it appears that the Administration lacks sufficient evidence to try him in federal court. for any crime. 

The United States is not at war with Afghanistan. United States military action 

in Afghanistan is being undertaken in alliance with the recognized Government. 

The United States has for many years recognized the Rabbani Government, and 

never recognized the Taliban as the lawful regime. The consistency of this United 

States position is reflected in the fact that the United States never placed Afghanistan on the State Department’s list of ‘‘state sponsors of terrorism.’’ Even after the 

imposition of UN sanctions against the Taliban for harboring Osama Bin Laden following his indictment for the 1998 embassy bombings, the Secretary of State refrained from adding Afghanistan to the list of state sponsors of terrorism because 

the Taliban did not wield ‘‘state’’ authority in Afghanistan. 

As was the case with Panama at the time of the United States invasion, the de 

jure Rabbani regime in Afghanistan lacked control over most of the nation’s territory at the time the United States intervened militarily. Acting in concert with elements allied with the de jure regime, the United States altered the situation on the 

ground so as to take control from a de facto regime (Manual Noriega, in the case 

of Panama; the Taliban, in the case of Afghanistan). Once seized, Panamanian General Noriega was tried by a federal district court, receiving the full protection of the 

Bill of Rights. He was not charged with ‘‘war crimes’’ and was not tried by a military commission. The use of military force to effect his arrest had no impact on his 

treatment, other than certain details concerning his conditions of detention (Noriega 

claimed to be a ‘‘prisoner of war’’). The fact that Noriega’s prosecution took place 

in the context of a metaphorical ‘‘war on drugs’’ was of no legal significance. 

Whether non-citizens possess the same constitutional rights as citizens when subjected to criminal prosecution? The Order is defended on.the ground that it does not 

apply to United States citizens. Over a century ago, in the midst of the racist, antiimmigrant ‘‘Chinese exclusion’’. era, Congress enacted a statute subjecting undocumented Chinese immigrants to one year of imprisonment at hard labor, without providing a criminal trial with all the guarantees of the Bill of Rights. The United 

States Supreme Court invalidated this statute, in Wang Wing v. United States, 163 

U.S. 228 (1896), as a deprivation of the immigrants’ constitutional rights. In the 

rnidst of the Cold War, the Supreme Court described Wong Wing as standing for 

the principle that ‘‘Under our law, the alien in several respects stands on an equal 

footing with citizens. . . .[I]n criminal proceedings against him he must be accorded 

the protections of the Fifth and Sixth. Amendments.’’ Harisiades v. Shaughnessy, 

342 U.S. 580 (1952). The Order cannot be sustained on any theory that foreigners 

465

who are not enemy aliens can be deprived of trial in the civil courts and subjected 

to military commissions, any more easily than citizens. The principle of equal protection under the Bill of Rights for non-citizen criminal defendants is deeply grounded in United States Constitutional law, and has been categorically affirmed by the 

Supreme Court during previous periods of harsh measures against perceived foreign 

threats to national security. 

Whether Article III forbids the president to send these criminal cases to military 

commissions? Pursuant to Article III of the Constitution, Congress has the authority 

to establish the lower federal courts. Only Article III courts staffed by judges with 

lifetime tenure and protection against salary reduction may hear ‘‘Article III cases,’’

which include prosecutions for federal crimes. There are only three exceptions to 

this principle: territorial courts, courts martial, and cases involving public rights 

such as federal benefits. The proposed military commissions are not courts martial; 

they provide far fewer guarantees of fairness than those established.in the Uniform 

Code of Military Justice, and they are designed to exercise jurisdiction over civilians. Quirin suggests an exception for war crime trials of enemy aliens during international armed conflict, but as explained above that situation does not exist in the 

United States at the present time. 

The Order is designed to strip the federal courts of their jurisdiction over certain 

federal crimes, and to commit these cases to trial by commissions established by executive fiat. The Order violates Article III in depriving the defendants of their constitutional right to be tried by Article III judges. Those judges have lifetime tenure 

precisely to insulate them from political pressure and to insure that unpopular defendants receive justice. The Order further violates Article III by invading the exclusive power of Congress to define the jurisdiction of the federal courts, and by invading the province of the federal judiciary to exercise the jurisdiction Congress has 

conferred upon it to try federal crimes. 

Whether the Military Commissions lack constitutional protections essential to protect against conviction and execution of the innocent? Every single Constitutional 

guarantee intended to prevent the conviction and punishment of the innocent is deliberately sacrificed in the design of the Commissions. There is no indictment by 

grand jury, no jury trial, no presumption,. of innocence, no privilege against selfincrimination, no public trial, no right to counsel, of the defendant’s choosing, no 

right to confront the evidence against one, no right to trial by an independent and 

impartial judge, no right to be convicted only by proof beyond a reasonable doubt. 

Conviction and death sentence may be imposed by two-thirds of the hand-picked 

commission members. There is no appeal. There are no rules of evidence. It is unclear what substantive law of crimes the commissions will apply. If the commissions 

create their own criminal code and apply it retroactively to detainees, the United 

States Government will also violate the prohibition on ex post facto laws. Congress 

possesses the exclusive authority to define federal crimes. 

For all of these reasons we believe that the Order to be in violation of international and constitutional law principles. We urge the President to rescind this 

order and to rely on the authority of the Federal court system to prosecute persons 

accused of terrorism. 

Very truly yours, 

CHARLES D. SIEGAL, CHAIR

Professor William Aceves 

Jeffrey L. Bleich, Esq. 

John Carey 

Christina M. Cerna, Esq. 

Dr. Cynthia Price Cohen 

Professor Anthony D’Amato. 

Professor Joan F. Fitzpatrick 

Professor Thomas M. Franck 

Sofia Gruskin, Esq. 

Professor Malvina Halberstam 

Professor Hurst Hannum 

Professor Louis Henkin 

Paul L. Hoffman, Esq. 

Professor David Leebron 

Professor James A.R. Nafziger 

Professor Ved P. Nanda 

Professor Jordan J. Paust 

Arnold N. Pronto, Esq. 

Professor W. Michael Reisman 

Professor Alison Durides Renteln 

Theodore Ruthizer, Esq. 

Professor Louis B. Sohn 

Judith L. Wood, Esq.

f466

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

PAST U.S. CRITICISM OF MILITARY TRIBUNALS AND DENIAL OF DUE PROCESS ABROAD

Under President Bush’s November 13th Executive Order on military commissions, 

any foreign national designated by the President as a suspected terrorist or as aiding terrorists could potentially be detained, tried, convicted and even executed without a public trial, without adequate access to counsel, without the presumption of 

innocence or even proof of guilt beyond reasonable doubt, and without the right to 

appeal. 

The U.S. State Department has repeatedly criticized the use of military tribunals 

to try civilians and other similar limitations on due process around the world. Indeed, its annual Country Reports on Human Rights Practices evaluate each country 

on the extent to which it guarantees the right to a ‘‘fair public trial’’—which it defines to include many of the due process rights omitted by the President’s Executive 

Order. The Order may make future U.S. efforts to promote such standards appear 

hypocritical. Indeed, even if its most egregious failings are corrected in subsequent 

regulations, the text of the Order may become a model for governments seeking a 

legal cloak for political repression. 

Several countries about which the State Department has expressed concern include: 

Burma: The State Department described the Burmese court system, in its most 

recent Country Reports as ‘‘seriously flawed, particularly in the handling of political 

cases,’’ where trials are not open to the public and military authorities dictate the 

verdicts. SLORC Order 7/90 allows commanders to try Buddhist clergy members before military courts for ‘‘activities inconsistent with and detrimental to Buddhism.’’ The Burmese government justifies all such trials by citing threats to national unity 

and security. 

China: The State Department has documented numerous means by which Chinese 

officials undermine due process. The United States has criticized China’s system in 

part because defendants do not enjoy a presumption of innocence or its corollary 

rights, such as habeas corpus, standard of guilt, or the burden of proof necessary 

to ensure it. Trials involving national security, espionage or state secrets are conducted in secret. The government has broad authority to define crimes that endanger ‘‘state security’’ as it sees fit. Police can monitor client counsel meetings and defendants are not always allowed to confront their accusers. The most recent Country 

Reports state that, ‘‘the lack of due process is particularly egregious in death penalty cases.’’ The lack of procedural safeguards has enabled China to engage in crackdowns on dissent that the United States has condemned, including a crackdown in 

predominantly Muslim areas that has ‘‘failed to distinguish between those involved 

with illegal religious activities and those involved in ethnic separatism or terrorist 

activities,’’ as the State Department’s annual report on religious freedom concluded 

in 2000. 

Colombia: Colombia’s use of faceless prosecutors, judges, witnesses and attorneys 

in cases of narcotics trafficking, terrorism, kidnapping, subversion and extortion 

during the early and mid-1990s has been criticized in the Country Reports. The 

1996 Report noted that, ‘‘it was still difficult for defense attorneys to impeach or 

cross-examine anonymous witnesses, and often they did not have unimpeded access 

to the State’s evidence.’’ Egypt: The most recent Country Reports criticized the manner in which military 

tribunals were used to try a wide range of offenses in Egypt, from non-violent dissent to acts of terrorism. The judges in these trials are military officers appointed 

by the Ministry of Defense. Verdicts may not be appealed, and are subject to review 

only by a panel of other military judges and then confirmed by the President. In 

2000, two members of the ‘‘Islamic Gihad group in Egypt’’ who had been sentenced 

by military courts to death in absentia were executed. Civilians are often referred 

to military courts, some accused of membership in organizations that do not advocate or practice violence, but which are illegal. The 2000 Country Report stated that 

‘‘this use of military courts. . .has deprived hundreds of civilian defendants of their 

constitutional right to be tried by a civilian judge.’’ It added that ‘‘military courts 

do not ensure civilian defendants due process before an independent tribunal’’ and 

that the military officers who serve as judges in these courts ‘‘are neither as independent nor as qualified as civilian judges in applying the civilian Penal Code.’’

Kyrgyzstan: The State Department has noted that in Kyrgyzstan, ‘‘the government 

frequently used the judicial process to eliminate key political opposition figures.’’

Opposition leaders have been tried in closed military courts—although a civilian 

467

may be tried in military courts only if a codefendant is a member of the military. 

The decision of civilian courts to render an indeterminate verdict back to the Procurator for further investigation may not be appealed. The Country Report also stated 

that, ‘‘in practice, there was considerable evidence of executive branch interference 

in verdicts involving prominent political opposition figures.’’ Malaysia: Malaysia’s 1975 Essential (Security Cases) Regulations restrict due 

process by allowing the accused to be held for unspecified periods of time before 

being charged and by lowering the standards used for accepting self-incriminating 

statements as evidence. These regulations usually apply only-to firearms cases but 

may be applied to other criminal cases if the government decides that national security considerations are involved. The most recent Country Reports adds that ‘‘even when the Essential Regulations are not invoked, defense lawyers lack legal protections against interference.’’ Many lawyers are charged with contempt of court after 

filing motions on behalf of their clients, particularly if they bring about allegations 

of prosecutorial misconduct. 

Nigeria: The State Department condemned Nigeria following the conviction and 

execution of author and minority rights activist Ken Saro-Wiwa and eight other activists before a specially constituted tribunal in which a military officer was one of 

three judges. The US ambassador was recalled for consultations and sanctions on 

the Nigerian regime were extended. Special tribunals in Nigeria, including military 

tribunals, became commonplace during the periods of military rule from 1966 to 

1979 and 1983 to 1999, and had jurisdiction over offenses such as civil disturbances, 

armed robbery, some categories of corruption, coup-plotting, and illegal sale of petroleum. Many military decrees also included ‘‘ouster clauses’’ providing that government decisions could not be questioned in a court of law. In the Country Reports 

for 1996, the State Department noted that, in Nigeria, ‘‘in practice tribunal proceedings often deny defendants due process.’’ In a statement before the House International Relations Committee in 1998, Assistant Secretary of State for African Affairs Susan Rice stated that, ‘‘military tribunals denied due process to political and 

other prisoners’’ in Nigeria. 

Peru: Peru’s use of military tribunals to try civilians accused of treason and terrorism has been repeatedly criticized by the State Department. The most recent 

Country Reports noted that ‘‘proceedings in these military courts—and those for terrorism in civilian courts—do not meet internationally accepted standards of openness, fairness, and due process.’’ Treason trials may be held in secret if the courts 

deem it necessary, and defense attorneys are prohibited from accessing the State’s evidence files or questioning military or police witnesses. 

U.S. citizen Lori Berenson was tried and convicted of the terrorism-related crime 

of treason before a military tribunal. The State Department noted that her trial 

lacked sufficient guarantees of due process, and State Department Spokesman Phillip Reeker in a June 2001 briefing stated that her military trial had ‘‘egregious 

flaws.’’ In 1996, Spokesman Glyn Davies said the United States ‘‘deeply regret[ed] 

that Ms. Berenson was not tried in an open civilian court with full rights of legal 

defense, in accordance with international juridical norms’’ and called for the case 

to be retried in an ‘‘open judicial proceeding in a civilian court’’—a point repeatedly 

reinforced by State and White House officials to their counterparts in Peru. 

Russia: The arrests and detentions of various government critics, including academics, human rights activists and journalists have been documented in the State 

Department’s Country Reports. Espionage cases in particular have been subject to 

frequent abuses. In 1999, Igor Sutyagin, a researcher for the USA Canada Institute 

was detained on espionage charges. The Russian Federal Security Service (FSB) has 

claimed that Mr. Sutyagin violated a secret Ministry of Defense decree on secrecy. 

Evidence in his case was secret, and Mr. Sutyagin remains in detention. Other individuals who have been charged with treason include Aleksandr Nikitin, a retired 

Russian Navy captain and environmentalist. According the most recent Country Reports, ‘‘Nikitin’s case was characterized by serious violations of due process.’’ The 

Country Report also expressed concern about the trials of several non-Russians 

charged with espionage. As in the previous cases, the attorneys had trouble obtaining the details of the charges. 

U.S. citizen Edmond Pope, a businessman, was arrested by FSB agents in April 

2000, convicted of espionage and sentenced to 20 years in prison for his efforts to 

purchase Russian technology that reportedly was publicly available, and not classified, as was claimed. His trial took place behind closed doors—a fact protested by 

the United States. 

Sudan: The United States has consistently condemned the government of Sudan 

for denying defendants the right to a fair public trial. As the 2000 Country Report 

on Sudan noted: ‘‘Military trials, which sometimes are secret and brief, do not provide procedural safeguards, sometimes have taken place with no advocate or counsel 

468

permitted, and do not provide an effective appeal from a death sentence.’’ The State 

Department has also expressed concern about special three-person security courts 

in Sudan, on which both military and civilian judges sit, and which deal with violations of constitutional decrees, emergency regulations, some sections of the Penal 

Code, as well as drug and currency offenses. These courts severely restrict the right 

of attorneys to effectively defend their clients, although they do permit defendants 

to appeal their sentences. 

Turkey: The State Department has expressed concerns about Turkey’s State Security Courts (SSC), which have been used to prosecute leaders of armed political Islamic movement, those associated with armed Kurdish movements, as well as non 

violent critics of military or government policies. SSC’s try defendants accused of 

terrorism, drug smuggling, membership in illegal organizations, and advocating or 

disseminating ideas prohibited by law, including those ‘‘damaging the indivisible 

unity of the State.’’ SSC’s may hold closed hearings, and also allow testimony obtained during police interrogation in the absence of counsel to be admitted. The verdicts delivered by the SSC may be appealed to only a special department of the 

Court of Cassation that handles crimes against state security. Military courts may 

try civilians accused of ‘‘impugning the honor of the armed forces’’ or ‘‘undermining 

compliance with the draft.’’

Other countries have recently proposed legislation that limit due process. The 

‘‘Anti-Terrorism, Crime and Security Bill’’ introduced by the Home Office in Great 

Britain on November 13 allows foreigners to be jailed without a hearing if police 

or security officials identify them as potential terrorists. If foreign nationals suspected of terrorism-related activities cannot be removed to their own or a third 

country due to either administrative problems or provisions of the European Convention on Human Rights that prohibit the removal of those who may be subject 

to torture, they may be indefinitely detained. On November 19, David Blunkett, 

Britain’s Home Secretary, defended this law by arguing that it was not as severe 

as the Executive Order recently signed by President Bush.

f HUMAN RIGHTS WATCH

WASHINGTON, D.C. 

November 15, 2001

President George W. Bush 

The White House 

1600 Pennsylvania Avenue NW 

Washington, D.C. 20500

Dear President Bush,

We are writing to express our profound concern with the new Executive Order can 

the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against 

Terrorism, issued on November 13, 2001 . We recognize that the existing state of’

emergency in the United States permits certain derogations of internationally protected human rights. Nevertheless, the broad reach of the executive order sacrifices 

(ices fundamental rights to personal liberty and to a lair trial that go tar beyond 

what is permitted even in times of crisis. 

The United States has routinely condemned .such gross transgressions of basic 

due process rights when committed by other governments because they violate binding international law to which the U.S. government and over 140 other governments 

have subscribed. For example, the United Stales has:

• criticized the military court, in Peru that convicted U.S. citizen Lori 

Berenson for terrorism without adequate due process indeed, the State Department called on Peru to retry the case ‘‘in open civilian court with full 

rights of legal defense, in accordance with international judicial norms.’’

• condemned Nigeria for convicting and executing author and environmental activist Ken Saro-Wiwa and eight other activists alter a trial before 

a special military court appointed by the government. 

• criticized the manner in which military tribunals are used to by accused 

terrorists in Egypt, pointing out in its most recent annual report on human 

rights in that courtly that ‘‘military courts do not ensure civilian defendants’ due process before an independent tribunal. 

• expressed great cancel shout trials of foreigners, including Americans, for 

espionage before closed tribunals in Russia. 

469

If the Executive Order is implemented, it will do permanent damage to the United 

States’ ability to champion human lights and the rule of law around the world. It 

will undercut the U.S. government’s efforts to protect tile rights of U.S. citizens before foreign tribunals. And It will undermine tile human rights standards that you 

have said are key to distinguishing terrorism from lawful conduct. 

The Executive Order raises important concerns regarding U.S. obligations under 

the International Covenant on Civil and Political Rights (ICCPR), which the U.S. 

ratified in 1992. Article 4 of the ICCPR does permit a state to take measures derogating Iron its obligations under the Covenant in time of public emergency that 

threatens the life of the nation and is officially proclaimed. The U.S. declaration of 

a national emergency on September 14 may be considered to have met that condition, although to our knowledge the required formal notification of the U.N. Secretary-General has not Occurred. 

However, a state’s ability to derogate from the ICCPR is not unlimited. Derogation is never permitted Iron certain rights, such as the right to be free from torture 

(article 7) and tile prohibition of ex post facto laws (article 15). Otherwise, a stale 

may derogate from its obligations under the ICCPR only ‘‘to the extent strictly required by tile exigencies of the situation’’ and provided that such measures are not 

inconsistent with its other obligations under international law. The Human Rights 

Committee, the international body charged with interpreting tile ICCPR and monitoring compliance with it, states in its General Comment on article 4 that ‘‘This condition requires that States parties provide careful justification not only their decision to proclaim a state of emergency but also for any specific measures based on 

such a proclamation. . . .[T]hey must be able to justify not only that such a situation constitutes a threat to the life of the nation. but also that all their measures 

derogating from the Covenant are strictly required by tile exigencies of the situation.’’

The U.S. must thus meet a high burden to show that the rights circumscribed 

under the Executive Order meet the standard for derogating from under the ICCPR. 

As discussed below the Executive Order fails to meet this burden as it sharply curtails the right to liberty and security of the person under article 9 and the right 

to a fair trial under article 14. These rights not only are found in international law 

but are central to the fundamental rights of due process in the United States. 

RIGHT TO LIBERTY AND SECURITY OF PERSON

Section 2 of the Executive Order permits the arrest and detention of persons on 

grounds that are vague mid overbroad. It allows taking a person into custody if the 

President his ‘‘reason to believe’’ that the individual look part in ‘‘acts of international terrorism’’ against the United States. Because neither tile meaning of 

‘‘international terrorism’’ nor the nature of proscribed complicity is defined, the Executive Order is an extreme derogation of the ICCPR article 9 prohibition against 

arbitrary arrest and detention. Indeed, given the possibility that these provisions 

could be interpreted to proscribe conduct that was not already criminal, the Executive Order could even run afoul of the ICCPR’s non-derogable prohibition of ex post 

facto criminal laws. 

In addition, Section 3 of the Executive Order risks rendering ICCPR article 9 effectively meaningless by providing for conditions of detention that are distinct from 

those under existing U.S. law. Most significant are not the protections afforded detainees—including humane treatment, adequate food and water, access to health 

care—but those fundamental protections left off the list. There is no requirement, 

for example, that persons detained under the Executive Order be told the reason 

for their arrest or be promptly informed of charges against them; that persons deprived of their liberty be brought before a judicial authority who can decide on the 

lawfulness of their detention; or that those unlawfully arrested or detained shall 

have an enforceable right to compensation. Effectively the Executive Order allows 

for the arrest and indefinite detention of persons without charge and without legal 

recourse should they be unlawfully held. This is a clear abrogation of the fundamental right to liberty and security of person, well beyond the derogation permitted 

under article 4 of the ICCPR. 

RIGHT TO A FAIR TRAIL

Humand Rights Watch believes the open-ended provisions for the trial of persons 

under the Executive Order also exceed the limits of acceptable derogation of the 

right to a fair trial under international law. Although the mere establishment of a 

military commission and various procedures set out in the Executive Order are not 

necessarily in violation of international law, the absentee of key provisions regarding certain fundamental rights is a basis for extreme concern. 

470

Section 4 of the Executive Order states that at a minimum all trials shall be ‘‘full 

and fair,’’ but leaves the specifics open to future orders and regulations. For instance, there are no provisions for determining whether and to what extent trials 

should be public, nor even a requirement that judgments to made public. There is 

no requirement of a presumption of innocence, or that defendants have access to the 

evidence submitted against them, or even that proof of guilt be established beyond 

a reasonable doubt. It is left undetermined to what extent defendants will have access to legal counsel of their choosing, whether they will be able to communicate 

with counsel, and whether adequate time and facilities will be provided for a defense. No protection is provided against forced confessions. 

Sections 7 of the Executive Order states that a terrorist suspect ‘‘shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to 

have any such remedy or proceeding sought on the individual’s behalf’’ before a U.S. 

or any other court. Indeed, there is not even a provision for appellate review by a 

separate military commission panel, only non-judicial review by the President or the 

Secretary of Defense as the President’s designate. This denies the defendant the 

right to an appeal provided under international law, which is especially troubling 

because the Executive Order expressly contemplates military commissions handing 

down death sentences. It also denies the right to effective redress to all persons, including U.S. citizens, who might be affected adversely by the law. 

The comments made yesterday by Attorney General Ashcroft do nothing to Correct these sever deficiencies. He claimed that because the terrorists responsible for 

the September 11th attacks committed war crimes, they ‘‘do not deserve the protection of the American Constitution.’’ But the U.S. government has repeatedly argued 

that people accused of war crimes deserve full due process protection. That is certainly the case for U.S. soldiers who might be accused of war crimes by foreign 

courts, and it has even been true of alleged war criminals in Bosnia and Rwanda. 

The United States cannot credibly insist on due process when others are the victims 

if it refuses to accord the same due process when Americans are the victims. 

Umand Rights Watch believes the Executive Order is contrary to fundamental 

principles of human rights. While the rights in question may be derogated from in 

times of emergency, the U.S. must shoe that this is being done only to the extent 

strictly required by the exigencies of the situation. The far-reaching and ambiguous 

reach of the Executive Order strongly indicates that this is not the case. It is hard 

to imagine such a military commission escaping criticism by the U.S. government 

if created by another government. It is wrong and unlawful for the U.S. government 

to arrogate to itself the power to transgress these well established protections of 

international human rights law. 

We urge you to rescind the Executive Order. Should any derogation from the 

rights provided under the ICCPR prove necessary, it should be done in a manner 

consistent with the strict requirements of international law. 

Sincerely, 

KENNETH ROTH

f Executive Director

Statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, 

The Catholic University of America School of Law, Washington, D.C. 

Dear Senator Hatch and Members of the Committee on the Judiciary: 

I am pleased to respond to your request for my views regarding the issue of military tribunals and other measures that the Attorney General has undertaken to 

pursue the war against terrorism. As you know, it was my privilege to serve as head 

of the Office of Legal Counsel in the Reagan and first Bush administrations. 

WE ARE AT WAR

First, this is a war. The bloodshed that stains our National integrity in New York, 

Washington DC and Pennsylvania can be little else—actually and constitutionally. 

It is declared by some, most notably my friend and constitutional law colleague, Professor Laurence Tribe of Harvard, that Congress’ joint resolution of force in response 

to the September 11 attacks upon our sovereignty and thousands of innocent Americans does not possess ‘‘the ritualistic solemnity of a declaration of war.’’ It is not 

clear what this means, however, even to Professor Tribe since he later admits in 

the same commentary that ‘‘we are engaged in a real war, not a metaphorical one 

akin to the ‘wars’ on drugs or poverty.’’ In this latter sense, he is of course entirely 

471

correct there is nothing artificial about the grievous loss of innocent life already suffered, or threatened to be inflicted again, by terrorists who want nothing less than 

the destruction of America, herself. 

MILITARY TRIBUNALS ARE FULLY CONSTITUTIONAL

To put an end to the constitutional speculation, it is necessary to remember that 

war has been declared only five times by the Congress (the War of 1812, the Mexican American War of 1848, the Spanish American War of 1898, and World War I 

and World War II), while the U.S. military has been engaged in hundreds of military campaigns, including, of course, Korea, Vietnam, and the Persian Gulf without 

such formal declarations. In passing joint resolutions supporting these larger number of military campaigns, including the present one, it is abundantly clear that the 

President is entitled to exercise the full authority of the Commander in Chief, including the authority to create military commissions for the purpose of trying unlawful belligerents. As long ago as 1801 in Talbot v. Seeman, Chief Justice Marshall 

held that: ‘‘Congress may authorize general hostilities. . .or partial [war], in which 

case the laws of war, so far as they actually apply to our situation, must be noticed.’’

CONGRESS HAS AUTHORIZED THE PRESIDENT’S ACTIONS

Justice Jackson once observed as well that the President’s foreign affairs authority is at its zenith when Congress and the President have acted together. Given the 

joint resolution of force, the congressional appropriations in support of the Afghanistan campaign, the provisions of Title 10 which authorize the President to convene 

military commissions outside the normal rules of procedure and evidence, it would 

be fatuous to suggest that the President lacks authority to undertake the military 

order issued. 

The American Civil Liberties Union nevertheless immediately decries this logical, 

and entirely constitutional, exercise of war power as ‘‘deeply disturbing’’ and in contravention of ideas ‘‘central to our democracy.’’ In fact, as just observed, the President’s order is well-grounded upon constitutional text, statute and past practice, and 

is more likely to preserve civil liberty than to undermine it. 

ORDINARY CRIMINAL COURTS FAIL TO ACCOMPLISH OUR MILITARY OBJECTIVES

Terrorism is not garden-variety crime within an ordered society. It is the indiscriminate killing of civilian innocents and destruction of civilian property. As such, 

it is the quintessential crime against humanity, rather than a social or cultural dysfunction capable of rehabilitation or rectification by means of ordinary law enforcement and prosecution. 

Past experience with attempting to try terrorist acts within the regular criminal 

justice system has been unsatisfactory largely because standards of proof and rules 

of evidence entirely appropriate to peacetime are ill-suited to the effective punishment and deterrence of terrorist act. Presumed innocence, proof beyond a reasonable 

doubt and Miranda rights and privileges against self-incrimination all make sense 

when the delicate balance of citizen right is being balanced against societal interests 

in confining the use of force by authority. However, when a the Congress has authorized a President to respond to unprovoked attack with all necessary force to 

events like those of September 11 and ‘‘any future act’’ of international terrorism, 

the state of war intends the balance to be different. 

The standard applied in military tribunals is simple and pragmatic. If those perpetuating war crimes are not disposed of upon the field of battle, military tribunals 

may be empowered to ascertain with evidence that is ‘‘probative to a reasonable 

man’’—that is, more probable than not. What the tribunals seek to ascertain is 

whether a given person or organization has committed what Sir Edward Coke called 

centuries ago, a crime against humanity. In other words, the type of crime only committed by the enemies of mankind. 

Practically, this will mean neither the hearsay rule (which has bedeviled prior terrorist trials in federal court because of the disappearance or unreachability of direct 

witnesses) nor ill-fitting exclusionary rules that have no deterrence-based relevance 

to this setting would derail the admission of evidence obtained under the noncoercive interrogation authorized by the President’s order. The President has specifically 

provided as well that this humane treatment be afforded ‘‘without any adverse distinction based on race, color, religion, gender, birth, wealth, or similar criteria.’’

ACLU charges of ‘‘racial and ethnic profiling’’ thus find no support within the scope 

of the President’s own directive. 

472

A FULL AND FAIR TRIAL WILL BE PROVIDED

As in past cases, the actual composition and procedures of these tribunals—which 

can sit either in the United States or elsewhere—are left to be determined by the 

Secretary of Defense and military commanders subordinate to the President, subject 

however to the provision of a ‘‘full and fair trial,’’ with conviction and sentencing 

upon the concurrence of two-thirds of the tribunal or commission present. So while 

the rules and regulations are yet to come, we can get some inkling of their content 

by examining those promulgated by military commanders, such as Dwight Eisenhower in the European theater of WWII and Douglas MacArthur in the Pacific. 

While there are subtle differences, both commanders specified greater evidentiary 

latitude, including allowing secondary evidence where witnesses are unavailable and 

copies of documents and confessions to be admitted without undue delay or the kind 

of elaborate foundations required in cases before judges and juries, rather than military personnel. 

Is all this just an elaborate denial of due process and sham proceeding? Hardly, 

the use of military tribunals was commonplace in World War II and those appearing 

before them were both exonerated and executed. The same is likely now. The ‘‘fair 

trial’’ mandated by the Bush order is also more likely to become reality simply because the discipline of legally-trained military personnel sitting in judgment has a 

better chance of being humanly evenhanded than finding somewhere in the universe 

a jury capable of being dispassionate about the use of human weapons of mass destruction against the Trade towers and Pentagon. Professor Tribe and I agree when 

he concedes that due process of law ‘‘both linguistically and historically permits trying unlawful combatants for violations of the laws of war, without a jury or many 

of the other safeguards of the Bill of Rights, provided each accused may hear the 

case against him and receives a fair opportunity to contest it through competent 

counsel.’’

Most importantly, military tribunals have the virtue of allowing evidence to be 

considered without necessitating the disclosure of classified information in open 

court or the identification of intelligence personnel and sources. And here the point 

of military tribunals, and their appropriateness, becomes plain. These bodies, unlike 

regular Article III criminal justice system, are not primarily for purposes of punishment. They are extensions of the military campaign and the efforts of the President 

to ‘‘protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks.’’

Perhaps, that is why the creation of these tribunals in war time for the trial of 

war crimes is so well fixed and unassailable in constitutional precedent. The Supreme Court does not sit in ultimate review of the tribunal’s work beyond assuring 

itself that the commission was properly empaneled. It is also why the jurisdiction 

of these bodies depends upon Congress’ war power and the individual who, with how 

ever much reluctance he must surely have, acts as our Commander in chief. 

Military tribunals are a necessary part of the war on terrorism, but they are not 

the only part. Attorney General Ashcroft has received from Congress enhanced law 

enforcement authority to combat terrorist organizations and those who harbor or finance them. Necessary questions were asked, and in my judgment, sufficiently answered as to whether these proposals curtail our civil liberties. They do not. Congress’ prudent passage of the recent anti-terrorism legislation is well aimed at reconciling warrant and surveillance authority with global communications and detaining and removing those entering the United States for the purpose of causing civilian deaths through weapons of mass destruction. Unless construed well beyond their 

intended text and context, they should have no effect on the constitutionally protected speech and association of American citizens. 

But it is surely now unfair and incredulous to harangue Attorney General 

Ashcroft for advising the President that should the new anti-terrorism legislation 

lead to the apprehension of bin Laden and his confederates that a civilian trial as 

if he were a common thief or murderer—times, of course, several thousand—would 

be appropriate. 

As sensible as it may be to expand warrant authority in the context of terrorist 

emergency to include wireless and Internet communication and to raise the penalties for the knowing possession of biological toxins not reasonably necessary for 

peaceful purposes, to assume that the terrorist organizations responsible for September 11 should be tried in federal court is to confuse war and the crimes of war. 

Terrorists are neither soldiers nor garden variety criminals, meriting federal indictment, they are war criminals. 

As the Afghan bombing has proceeded, the nature of the military operations needed to root out these architects of war crime is expensive and prolonged. Of course, 

it is also open to doubt whether any of the malefactors will be taken alive. But asVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00108 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
473

suming some will, it is far healthier for the rule of law that the President has indicated their ultimate destination and method of punishment in advance. My former 

Justice Department colleague and U.S. Attorney General, William Barr, has been 

quoted as saying ‘‘[t]here’s a basic tension as to whether to treat this as a law enforcement issue or a national security/military issue.’’ He, of course, is right—that 

is the heart of the issue. 

Mr. Barr suggests that we ‘‘[f]ind these people and demolish them.’’ That may 

happen on the field of battle, but if it does not and we apprehend them instead, 

their destination should be a military tribunal, not the U.S. District Court. By definition, terrorism is aimed at indiscriminately killing civilian innocents and destroying civilian property. Professor Tribe may think that definition imprecise, but I 

doubt that the citizens of New York who now live without mothers and fathers or 

sons and daughters share in his belief. Respectfully, whatever imprecision may exist 

under the order does not render it, to use Professor Tribe’s words, ‘‘riddled with 

flaws,’’ but merely subject to the reasonable construction historically accorded President’s in the tactical decision making that accompanies a war effort. 

EVEN OPPONENTS CONCEDE THE UNSUITABILITY OF REGULAR COURTS

Professor Tribe has sagaciously observed, however, that even if regular criminal 

proceedings might be stretched to accommodate the trial of unlawful belligerents, 

‘‘it does not follow that they are best-suited for the task. . . .[S]uch nonmilitary 

trials grant an extended pulpit to an accused bent on claiming martyrdom and capable of stirring others to further acts of international terrorism.’’ Professor Tribe’s important observation reminds us, as President Bush’s military order does, that the 

tribunals are only partially to punish, they are also to prevent ‘‘the potential deaths, 

injuries, and property destruction that would result from potential acts of terrorism 

against the United States.’’ Yes, our objective is to punish those who took our brothers and sisters—or in my case a faculty colleague killed in the Pentagon plane— but it is also to root out and deter the instigators of further harm. In battle, this 

is best accomplished by a partial or targeted declaration of war, not against Afghanistan, itself, but the terrorists resident there, or anywhere. Tactically, in the present 

war, the battle necessarily extends to the disposition of those who are apprehended 

and suspected of war crime. 

Are military tribunals then a violation of civil liberties? No, simply a recognition 

of well established precedent. Military belligerents violating the international laws 

of war are properly tried before a panel of military officers. Such military commissions received extensive use in the Civil War, and were affirmed by the Supreme 

Court in the famous World War II decision sentencing General Tomoyuki Yamashita 

to hang for the brutal atrocities he ordered against civilians in the Philippines. 

When Yamishita petitioned the Court for habeas corpus, the Court rebuffed him 

stating that the war power delegated by Congress includes administering a system 

of military justice for the trial and punishment of those combatants who have committed war crimes. No case contradicts this. The Civil War precedent, Ex parte Milligan that nominally questions the availability of military tribunals where civilian 

courts remain open, as Professor Tribe noted, was later confined to its unique domestic insurgency facts, and specifically the fact that Milligan was not—in international parlance—an ‘‘unlawful belligerent.’’ Terrorists clearly are. 

FARFETCHED HYPOTHETICALS SHOULD NOT DISTRACT US FROM THE SERIOUS TASKS

AT HAND

Professor Tribe, and others, argue with various farfetched hypotheticals that the 

President’s order might be misapplied. Aside from whether the President deserves 

in this time of emergency greater deference, it is simply not sound constitutional 

practice to invalidate executive action that has a completely constitutional range of 

application because it might be misapplied under a strained application of its text. 

Professor Tribe wants the Congress to step in, but it is not clear to what end. Indeed, given the text of the order and the President’s full intention to apply it to the 

leadership of al Qaida or its terrorist equivalent, there is nothing to correct or rectify. Instead, opponents of the order proceed to mix issues by broadly complaining 

of Justice Department initiatives to interrogate those who have recently traveled to 

or from terrorist nations and fit other criteria or to monitor the conversations of 

those already convicted of terrorism and in jail or awaiting trial for espionage. 

THE LAWFULNESS OF THE DETENTION POLICY

It is appropriate in concluding, therefore, to briefly examine the Attorney General’s actions. First, as to detentions, it is very clear that the Attorney General is 

474

holding individuals who are either violating immigration law or needed as a material witness. In the former case, existing immigration procedures will be employed 

to dispose of the cases. In the second, Title .18 and Supreme Court precedent affirm 

the right to detain material witnesses who have knowledge of facts closely connected 

to a crime and whose testimony would likely be relevant and highly probative in 

a criminal proceeding. In this instance, the Attorney General is doing little more 

than applying well established statutory law that allows detention where a judicial 

officer determines that it may become impractical to secure the presence of the person by subpoena. 18 U.S. C. 1844. As Justice Jackson stated long ago for the Court, 

‘‘the duty to disclose knowledge of crime. . .is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.’’ Stein v. New 

York, 346 U.S. 156, 184 (1953). 

THE LAWFULNESS OF THE REQUEST FOR INFORMATION

A fortiori if a citizen can be detained to disclose knowledge of a crime as a duty 

of citizenship, noncitizens here on immigration visas can certainly be asked to voluntarily answer questions that may lead to the apprehension of terrorists. As the 

Attorney General has repeatedly emphasized these individual have not been singled 

out for reasons of animus. They are being sought for reasons of common sense police 

work related to recent (with the last two years) connection with terrorist locations 

and their arrival on student, tourist and business visas similar to those employed 

by the terrorists of September 11. 

As the FBI noted almost three years prior to September 11, ‘‘we have a problem 

with Islamic terrorism. . . .If we had a problem with Latvian terrorism, we’d focus 

on Latvians.’’ John Mintz and Michael Grunwald, FBI Terror Probe Focuses on U.S. 

Muslims,’’ Wash. Post, October 31, 1998 at A1. There is nothing unconstitutional 

about focusing police work on the likeliest suspects. Indeed., it is arguable that the 

factual profile being employed by the Attorney General in any given case with a few 

additional facts—could support the reasonable suspicion standard allowing not just 

voluntary, but involuntary, detention and questioning. The Attorney General with 

considerable restraint has not pressed this position. Rather, he has taken a narrow 

view of his authority that coincides fully with precedent, such as the Supreme 

Court’s recent denial of review in Brown v. Oneta (2001). Police questioning based 

upon race is not unconstitutional so long as it is based on a race-neutral policy of 

obtaining a description of the assailant and seeking out persons who match it. Even 

putting aside the substantial questions of whether the Fourth Amendment applies 

to noncitizens in the same fashion as it does to citizens—a proposition that is highly 

doubtful in light of the Supreme Court’s plurality decision in United States v. Verdugo-Urquidez. (1990) (indicating that aliens do not necessarily qualify as ‘‘the 

people’’ under the Fourth Amendment)—the Attorney General is well authorized to 

undertake the investigation that he has. 

PRISONERS HAVE NO PRIVILEGE TO PLOT FUTURE TERRORIST ACTIVITY FROM PRISON

Turning lastly to the monitoring of prisoner communications, the Attorney General has prudently limited this practice to 12 convicted terrorists and four people 

being held on espionage charges. In may come as a surprise to some, but a prisoner 

has no legal right to privacy. Prison officials regularly screen mail and monitor visits of those incarcerated. True, the law recognizes various privileges—such as attorney-client—but conversations are privileged only if they legitimately fall within the 

scope of the relationship. A conversation with one’s attorney that facilitates new 

acts of terrorism is not privileged. The Justice Department policy is well-crafted to 

observe these constitutional strictures. First, the affected prisoners are notified in 

advance of the monitoring. Second, a ‘‘taint team’’ uninvolved in the prosecution of 

the affected prisoner will monitor and either discard privileged material related to 

trial preparation and the like or seek disclosure but only (barring emergency) with 

the approval of a federal judge. Again, even assuming that the Fifth and Sixth 

Amendments (privilege against self-incrimination and fair trial) apply to noncitizens 

in the same way as citizens, there is no constitutional violation unless the prosecution actually and intentionally obtains confidential information pertaining to trial 

preparation and defense strategy and that information is used to the defendant’s substantial detriment. As the Supreme Court has long held intrusions into the attorney-client relationship are not per se unconstitutional. There must be a concrete 

showing of harm to the defendant and benefit to the State. Weathersford v. Bursey

(1977). The Attorney General has established a procedure to monitor conversations 

not to harm criminal defendants, but to ensure the safety and security of innocent 

American citizens from future terrorist attack. That is not now, nor should it ever 

be, unconstitutional. 

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I hope this opinion is useful to the work of the committee, and I thank you for 

the opportunity to present it to you for your deliberations.

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

fWE HAVE THE RIGHT COURTS FOR BIN LADEN

NEW HAVEN—If we should capture 0sama bin Laden or his accomplices in the 

days ahead, where should we try them? Two unsound proposals have recently 

emerged. The first, and by far more dangerous, is already law: the president’s misguided and much criticized order authorizing secret trials before an American military commission. The second, more benign approach, offered by prominent international lawyers, is to try terrorists before an as yet uncreated international tribunal. 

Both options are wrong because both rest on the same faulty assumption: that our 

own, federal courts cannot give full, fair and swift justice in such a case. If we want 

to show the world our commitment to the very rule of law that the terrorists sought 

to undermine, why not try mass murderers who kill American citizens on American 

soil in American courts? 

I hope never to see 0sama bin Laden alive in the dock. As Mohammed Atefs recent death shows, international law entitles us to redress the killing of thousands 

by direct armed attack upon Osama bin Laden and other Al Qaeda perpetrators responsible for the attacks of Sept. 11. But if they surrender, we should not lynch 

them, but rather try them, to promote values that must stand higher than vengeance: to hold them accountable for their crimes against humanity, to tell the world 

the true facts of those crimes and to demonstrate that civilized societies can provide 

justice for even the most heinous outlaws. Israel tried Adolf Eichmann. We can try 

0sama bin Laden, and without revealing secret information, making him a martyr 

or violating our own principles. President Bush’s order for secret military trials undermines these values. 

I have long supported international adjudication, but that option makes little 

sense here. As recent efforts to try international crimes in Cambodia and Sierra 

Leone show, building new tribunals from scratch is slow and expensive and requires 

arduous negotiations. Geopolitical concerns in this case would predominate, and the 

impartiality of the tribunal would inevitably be questioned by some in the Muslim 

world. These tribunals are—preferable only when there is no functioning court that 

could fairly and efficiently try the case, as was the situation in the former Yugoslavia and in Rwanda. 

American courts have tried international criminals who have violated the law of 

nations including pirates and slave traders—since the beginning of the nation. We 

have convicted hijackers, terrorists and drug smugglers (including Panama’s Manuel 

Noriega, who surrendered to American soldiers after extended military operations). 

Osama bin Laden and his top aides have already been indicted in federal court. 

We have successfully tried and convicted Al Qaeda members and associates for attempting to blow up the World Trade Center and planning the August 1998 bombings of the American embassies in Tanzania and Kenya. With venue changes, careful security and intensive investigative efforts, Timothy McVeigh was tried, convicted and sentenced for a comparable terrorist act. As for protecting classified information, existing law gives prosecutors ample authority to prevent such information 

from being compromised in trial. 

If any judicial system in the world can handle a case like this fairly, efficiently 

and openly, it is ours. If four or 400 Americans had died at the World Trade Center 

and the perpetrators had been caught, no one would suggest that we try the murderers anywhere but in American courts. No country with a well functioning judicial 

system should hide its justice behind military commissions or allow adjudication of 

the killing of nearly 4,000 residents by an external tribunal. Why not show the 

world that American courts can give universal justice? 

Harold Hongju Koh, a professor of international law at Yale, was assistant secretary of state for human rights in the Clinton administration.

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f545

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

WAKE UP, AMERICA

BOSTON—It is the broadest move in American history to sweep aside constitutional protections. Yet President Bush’s order creating military tribunals to try 

those suspected of links to terrorism has aroused little public uproar. Why? Because, 

I am convinced, people do not understand the order’s dangerous breadthand its defenders have done their best to conceal its true character. 

The order is described as if it is aimed only at 0sama bin Laden and other terrorist leaders. A former deputy attorney general, George J. Terwilliger III, said the 

masterminds of the Sept. 11 attacks ‘‘don’t deserve constitutional protection.’’

But the Bush order covers all noncitizens, and there are about 20 million of them 

in the United States immigrants working toward citizenship, visitors and the like. 

Not one or 100 or 1,000 but 20 million. 

And the order is not directed only at those who mastermind or participate in acts 

of terrorism. In the vaguest terms, it covers such things as ‘‘harboring’’ anyone who 

has ever aided acts of terrorism that might have had ‘‘adverse effects’’ on the U.S. 

economy or foreign policy. Many onetime terrorists Menachem Begin, Nelson 

Mandela, Gerry Adams—regarded at the time as adverse to U.S. interests, have 

been. ‘‘harbored’’ by Americans. 

Apologists have also argued that the Bush military tribunals will give defendants 

enough rights. A State Department spokeswoman, Jo-Anne Prokopowicz, said that 

they would have rights ‘‘similar to those’’ found in the Hague war crimes tribunal 

for the former Yugoslavia. 

To the contrary, Hague defendants like Slobodan Milosevic are entitled to public 

trials before independent judges, and to lawyers of their choice. The Bush military 

trials are to be in secret, before officers who are subordinate to officials bringing 

the charges; defendants will not be able to pick their own lawyers. And, unlike the 

Hague defendants, they may be executed. 

The Sixth Amendment provides: ‘‘In all criminal prosecutions, the accused shall 

enjoy the right to a speedy and public trial, by an impartial jury. . ..’’ That covers 

citizens and noncitizens in this country alike. 

On a few occasions, acts of war have been treated as outside Sixth Amendment 

protection. Roosevelt set up a military tribunal to try Nazi saboteurs landed on our 

shores in World War II. But that example—a tribunal for a particular occasion, limited in time and scope—shows the very danger of the Bush order. It is unlimited, 

in a fight against terrorism that could go on for years. 

‘‘It’s worth remembering that the order applies only to noncitizens,’’ a Wall Street 

Journal editorial said. I hope The Journal’s editors, who are usually supportive of 

immigrants and their role in building this country, will consider the pall of fear this 

order may put on millions of noncitizens. 

And the Bush order could easily be extended to citizens, under the administration’s legal theory. Since the Sixth Amendment makes no distinction between citizens and aliens, the claim of war exigency could sweep its protections aside for anyone in this country who might fit the vague definitions of aiding terrorism. 

But George W. Bush would never let his order be abused, one of its defenders said 

the other day. It was a profoundly un-American comment. From the beginning, 

Americans have refused to rely on the graciousness of our leaders. We rely on legal 

rules. That is what John Adams meant when he said we have ‘‘a government of 

laws, and not of men.’’

The Framers of our Constitution thought its great protection against tyranny was 

the separation of the federal government’s powers into three departments: executive, 

legislative, judicial. Each, they reasoned, would check abuse by the others. 

There is the greatest danger of the Bush order. It was an act of executive fiat, 

imposed without even consulting Congress. And it seeks to exclude the courts entirely from a process that may fundamentally affect life and liberty. The order says 

that a defendant ‘‘shall not be privileged to seek any remedy. . .in any court,’’ domestic or foreign. 

I do not doubt that leaders of Al Qaeda could properly be tried by a military tribunal. But the Bush order cries out for redrafting in narrower, more careful terms. 

Under the Constitution, that is the duty of Congress. Its leaders have so far been 

afraid to challenge anything labeled antiterrorist, however dangerous. It is time 

they showed some courage, on behalf of our constitutional system.

f546

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

DUST IN OUR EYES

Boston—President Bush’s order establishing military tribunals has a particular 

distinction apart from its impact on American traditions of justice. For a presidential directive of such profound importance, it is extraordinarily ill drafted. 

So we must conclude from statements made by supporters of the Bush proposal. 

For they have defended it by running away from the language of the order, spinning 

the text to make it seem more reasonable. 

A striking example was a piece by the president’s counsel, Alberto R. Gonzales, 

on the OpEd page of The New York Times last week. The article read as if Mr. 

Gonzales were defending an order that he wished he and his colleagues had written 

instead of the one that Mr. Bush actually issued. 

‘‘The order preserves judicial review in civilian courts,’’ Mr. Gonzales wrote. 

‘‘Under the order, anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in a federal court.’’

In fact, the order said: 

‘‘The individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on 

the individual’s behalf, in (i) any court of the United States, or any State thereof, 

(ii) any court of any foreign nation, or (iii) any international tribunal.’’

Far from ‘‘preserving’’ judicial review, as Mr. Gonzales said, the order sought to 

prevent it. A court might nevertheless entertain a habeas corpus petition, but review on habeas corpus is usually more limited than on a regular appeal. 

Military commissions, Mr. Gonzales said, ‘‘can dispense justice swiftly, close to 

where our forces may be fighting.’’ That sounds as though the order covers only enemies captured in Afghanistan, or potentially on other foreign battlefields. Others 

have argued for the order from the same premise. But it is false. 

The order covers all immigrants, visitors and other non-citizens in the United 

States, about 20 million of them. Asians, Hispanics, Russians, Israelis and others 

who came here to struggle for a better life will now know that they are at risk of 

being detained and tried by a military tribunal if someone thinks they have something to do with terrorism. It is a two-tier system of justice: a violation of America’s 

historic promise of equal justice. 

‘‘The president will refer to military commissions only non-citizens who are members or active supporters of al Qaeda or other international terrorist organizations 

targeting the United States,’’ Mr. Gonzales said. But the order applies much more 

broadly and vaguely, for example to anyone who has ‘‘harbored’’ someone who has 

ever prepared terrorist acts. 

‘‘The American military justice system is the finest in the world,’’ Mr. Gonzales 

said, suggesting that the Bush military commissions will be the same as courts-martial under the Uniform Code of Military Justice. But they will be very different. 

For example, the jury in a regular military court must be unanimous to impose 

a death sentence. Mr. Bush’s tribunals require only a two-thirds vote of commission 

members ‘‘present at the time of the vote,’’ and only a majority of members need 

be present. A five-member commission can operate with three present, and two 

could impose the death penalty: less than half the full commission. 

Court-martial judgments are appealable on all issues of fact and law. The courts 

use strict rules of evidence comparable to those in civilian courts, as against the relaxed standard allowed by Mr. Bush. Court-martial defendants have the right to 

choose their own lawyer; the Bush order gives no such assurance. 

Attorney General John Ashcroft said last week that the administration’s measures 

had been ‘‘carefully crafted to not only protect America but to respect the Constitution and the rights enshrined therein.’’ Critics, he said, ‘‘have sought to condemn 

us with faulty facts or without facts at all.’’

To the contrary, Mr. Ashcroft and his colleagues have sought to conceal the menacing facts of the Bush order. They remind me of my old boss James Reston’s quip, 

‘‘Don’t confuse us with the facts.’’

But these are not just word games. The issues are as serious as any that have 

faced our constitutional system in a long time. The Bush military tribunal order, 

The Economist of London says this week, ‘‘is deeply disturbing . . . . When so much 

is going so well for the United States, and deservedly so, it would be foolish to hand 

Mr. bin Laden such an unnecessary gift.’’

f547

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

EX-FBI OFFICIALS CRITICIZE TACTICS ON TERRORISM

DETENTION OF SUSPECTS NOT EFFECTIVE, THEY SAY

Until Sept. 11, the FBI employed a distinctive strategy for fighting terrorists: By 

using informants and wiretaps, the bureau monitored suspected cells—sometimes 

for years—before making any arrests. The theory was that only such long-term investigations reveal useful information about potential plots. 

Since the terrorist attacks on New York and Washington, that strategy has undergone a wholesale revision. Under the new approach, the FBI will focus chiefly on 

preventing terrorist acts by rounding up suspects early on, before they get a chance 

to act. 

The aggressive FBI dragnet—championed by Attorney General John D. Ashcroft— has provoked much commentary and criticism for its impact on civil liberties. Now, 

in a series of on-the-record interviews, eight former high-ranking FBI officials have 

offered the first substantive critique of the Ashcroft program, questioning whether 

the new approach will have the desired effect. 

The executives, including a former FBI director, said the Ashcroft plan will inevitably force the bureau to close terrorism investigations prematurely, before agents 

can identify all members of a terrorist cell. They said the Justice Department is resurrecting tactics the government rejected in the late 1970s because they did not prevent terrorism and led to abuses of civil liberties. ‘‘It is amazing to me that Ashcroft is essentially trying to dismantle the bureau,’’ said Oliver ‘‘Buck’’ Revell, a former FBI executive assistant director who was the 

primary architect of the FBI antiterrorism strategy during the 1980s. ‘‘They don’t 

know their history,’’ he said, ‘‘and they are not listening to people who do.’’ Former FBI director William H. Webster said Ashcroft’s policy of preemptive arrests and detentions ‘‘carries a lot of risk with it. You may interrupt something, but 

you may not be able to bring it down. You may not be able to stop what is going 

on.’’

In the past, Webster said, when the FBI identified a person or group suspected 

of terrorism, agents neutralized the immediate threat of violence. Then they began 

a long-term investigation using informants, surveillance or undercover operations, 

‘‘so when you roll up the cell, you know you’ve got the whole group.’’

Ashcroft declined to be interviewed for this article, as did FBI Director Robert S. 

Mueller III. Justice Department spokeswoman Mindy Tucker defended the change 

in tactics as part of a wartime mobilization at the department prompted by the 

Sept. 11 attacks. 

‘‘The world is different and the priorities are different,’’ Tucker said. ‘‘I understand this is not the traditional way the FBI handled things. But that’s the priority.’’

A senior Justice Department official who spoke on the condition of anonymity said 

that none of the changes ordered by Ashcroft would have enabled the FBI to prevent 

the Sept. 11 attacks. After two months of intensive investigation, the FBI has concluded that the 19 suspected hijackers acted alone in the United States as a selfcontained terrorist cell whose mission was planned and funded overseas. 

‘‘There was not a lot of the plot we could have jumped on here,’’ the official said. 

Webster and others say Ashcroft’s conviction that FBI counterterrorism operations 

require radical surgery ignores a record that, though not widely known outside the 

bureau, includes 131 prevented terrorist attacks from 1981 to 2000. 

‘‘We used good investigative techniques and lawful techniques,’’ said Webster, who 

left the FBI in 1987 to take over the helm at the CIA. ‘‘We did it without all the 

suggestions that we are going to jump all over the people’s private lives, if that is 

what the current attorney general wants to do. I don’t think we need to go that direction.’’

Many of the prevented attacks were potentially catastrophic, with targets that included a 747 airliner, a gas pipeline, a crowded movie theater and a visiting world 

leader, Indian Prime Minister Rajiv Gandhi. 

‘‘Interdiction [of planned terrorist attacks] became an investigative-planning tool, 

and we were rather successful at it,’’ said former FBI assistant director Kenneth P. 

Walton, who established the first Joint Terrorism Task Force in New York City. 

The sharp increase in FBI intelligence wiretaps and terrorism investigations after 

the 1995 Oklahoma City bombing led to the prevention of 15 attacks in 1997 and 

10 in 1998, FBI documents show. 

548

‘‘We lived to prevent a terrorist act,’’ Robert Blitzer, former chief of the FBI’s 

counterterrorism section, said. ‘‘That was our whole program. We prevented many 

acts of terrorism.’’

But not the ones on Sept. 11, which came at a time when the FBI was reeling 

from high-profile embarrassments, from misplaced FBI laptops and guns to a muchcriticized investigation of Wen Ho Lee to the treason of former FBI agent Robert 

P. Hanssen. 

FBI management reforms were under consideration even before Ashcroft announced his new strategy in a series of carefully orchestrated public statements over 

the past two months. The key elements include:

• Arresting and jailing ‘‘suspected terrorists’’ on minor criminal or immigration charges. ‘‘It is difficult for a person in jail or under detention to 

murder innocent people or to aid or abet in terrorism,’’ Ashcroft said on 

Nov. 13. 

• Cutting short long-term criminal terrorism investigations when agents 

detect the possibility of new violence. ‘‘Even though this may hinder a 

criminal investigation, prevention of terrorist attacks, even at the expense 

of a prosecution, must be our priority,’’ Ashcroft said on Oct. 29. 

• Deploying hundreds of state and local police officers to conduct voluntary 

interviews of 5,000 Middle Eastern men who are legal residents in the 

United States, based on their age and the country issuing their passport. 

• Shifting control of the FBI Joint Terrorism Task Forces across the country from the FBI to presidentially appointed local U.S. attorneys.

Although none of the former officials interviewed for this article questioned the 

value of fine-tuning FBI operations in light of Sept. 11, they contended that 

Ashcrofts new policies will weaken the FBI’s primary strategy for penetrating terrorist cells. 

‘‘It’s the Perry Mason School of Law Enforcement, where you get them in there 

and they confess,’’

Walton said of the plan to interview 5,000 Middle Eastern men. ‘‘Well, it just 

doesn’t work that way. It is ridiculous. You say, ’Tell me everything you know,’ and 

they give you the recipe to Mom’s chicken soup.’’

While Revell and others said the 5,000 interviews may have a short-term deterrent effect, they said the tactic is problematic. ‘‘One, it is not effective,’’ Revell said. 

‘‘And two, it really guts the values of our society, which you cannot allow the terrorists to do.’’

Through years of trial and error, the FBI has found that intelligence-gathering 

rarely deterred terrorist acts unless it was combined with long-term criminal investigations that employed informants, undercover agents and electronic surveillance. 

In virtually every case in which the FBI prevented a terrorist attack, these 

sources said, success depended on long-term investigations, whose hallmarks were 

patience and letting terrorist plots go forward. 

‘‘You obviously want to play things out so you can fully identify the breadth and 

scope of the conspiracy,’’ said James Kallstrom, former chief of the FBI office in New 

York, who oversaw two large investigations of the Qaeda terrorist network. ‘‘Obviously, the most efficient and effective way to do that is to bring it down to the last 

stage.’’

Former FBI assistant director John Otto described a case in which a long-running 

FBI investigation in Chicago of a Serbian nationalist terrorist cell prevented the 

deaths of nearly 300 Serbian American children attending a Christmas party at a 

church. An informant tipped off an agent to the plot. 

‘‘Long-term successful investigations are our forte,’’ Otto said. ‘‘I don’t think there 

is ever a need to get away from them. Look at the track record over time.’’

Although there are inherent risks, the ex-officials said there is no known case in 

which an FBI decision to let a bombing plot unfold resulted in injury or death. 

Former FBI deputy director Floyd I. Clarke said he sympathized with Ashcroft’s 

desire to take aggressive preventive measures, but said most preventions arise from 

methodical investigations. He cited one case in which FBI agents found out where 

a terrorist cell stored its explosives. 

‘‘We did not want to just go and arrest them and grab the explosives,’’ he said, 

‘‘because we knew they were connected with other groups.’’

Instead, FBI agents entered the building surreptitiously, rendered the explosives 

inert and sat back and waited. ‘‘Eventually, we ended up taking down a whole cell 

of people,’’ Clarke said. ‘‘You try to make sure you have got as complete a picture 

as you can.’’

After the World Trade Center bombing in February 1993, the FBI quickly arrested several Middle Eastern men with ties to the radical Islamic religious leader 

549

Sheik Omar Abdul Rahman, who was based in New Jersey. The bureau came under 

pressure to arrest or detain Abdul Rahman and others around him on immigration 

charges. But the FBI resisted. ‘‘We wanted to take the whole cell down and get him off the street for the rest 

of his life,’’ said Blitzer, the former counterterrorism chief, ‘‘not just allow him to 

be deported some place where he could continue on as the kind of terrorist leader 

he had been.’’ The FBI inserted a confidential informant into Abdul Rahman’s inner circle and 

began intensive electronic surveillance. Within two months, the informant reported 

a second plot. 

In June 1993, agents raided a warehouse in Queens, N.Y., where they surprised 

five Islamic fundamentalists. The men were bent over large mixing barrels and stirring a porridge of bombmaking chemicals, which they planned to use to blow up the 

Holland and Lincoln tunnels and other New York landmarks. ‘‘We had to let the information develop,’’ said former FBI assistant director William Gavin, who oversaw the investigation. ‘‘Taking them off the street at an early 

stage of the investigation, I don’t believe would have afforded us the opportunity to 

discover and resolve the intent to blow up the tunnels.

f ’’

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

MILLER TO ASHCROFT’S CRITICS: ‘GET OFF HIS BACK’

WASHINGTON—U.S. Senator Zell Miller (D–GA) today issued the following statement in advance of Thursday’s (12–6) Senate Judiciary Committee meeting, at 

which Attorney General John Ashcroft is expected to be grilled—about the Administration’s proposal to bring terrorists to justice using military tribunals: ‘‘They need to get off his back and let Attorney General Ashcroft do his job. 

‘‘Military tribunals have been used throughout history. The Supreme Court has 

twice upheld them as constitutional. ‘‘Now, we’re at war, and we’re talking about using military tribunals only for noncitizens. ‘‘Why in the world would we try our own soldiers with this system of justice but 

not some foreigner who is trying to kill us? It’s crazy. ‘‘These nit-pickers need to find another nit to pick. They need to stop protecting 

the rights of terrorists. ‘‘This is about national security. This is about life and death.

f ’’

NATIONAL DISTRICT ATTORNEYS ASSOCIATION

ALEXANDRIA, VIRGINIA 22314

December 5, 2001

Honorable Patrick J. Leahy 

Committee on the Judiciary 

224 Dirksen Senate Office Building 

Washington, DC 20510– 6275

Honorable Orrin G. Hatch 

Committee on the Judiciary 

152 Dirksen Senate Office Building 

Washington, DC 20510– 6275

Dear Chairman Leahy and Senator Hatch:

As the President of the National District Attorneys Association I strongly support 

the President, and Attorney General Ashcroft, as they seek out those who have subjected our nation to unheralded attack. As we face a future of uncertain dangers 

we must rise to the challenge of doing the utmost to preserve the safety and well 

being of our citizens while bringing international criminals to justice. 

In these unprecedented circumstances we must take extra ordinary measures, 

consistent with our legal traditions and principles of law, to bring stability to a chaotic and threatening period in our history. 

The terrorist’s heinous acts pose a clear threat to national security. We must all 

recognize, therefore, that the disruption of communications between international 

550

criminal elements is vital to prevent further attacks and loss of life. If, to do this, 

temporary restraints must be effectuated to further the criminal investigation and 

interrupt the flow of intelligence then we must be willing to accept this as necessary 

to protect our freedom. 

Even before this War Against Terrorism, America’s prosecutors have been stymied 

by international requirements that limit the prosecution of criminals that have successfully fled to other countries. After the attacks of September we must not allow 

those responsible for thousands of deaths to escape punishment because our system 

of laws cannot adapt to the new reality of international terrorism. 

The President’s plan to use military tribunals protects our national security interests while still ensuring the American tradition of the Rule of Law. The due process 

requirements that have been placed on the use of military tribunals, and their limited jurisdiction over non-US citizens, ensures that justice can be achieved. 

To Be the Voice of America’s Prosecutors and to Support Their Efforts to Protect 

the Rights and Safety of the People 

While Congress is proper in it’s continual scrutiny of our federal system of criminal justice I would urge that it support our President in this time of crisis. 

Sincerely, 

KEVIN P. MEENAN

District Attorney, 7th Judicial District, Casper, WY 

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

President, National District Attorneys Association

f WHAT PRICE SECURITY?; IN SEARCH FOR SAFETY, U.S. SACRIFICES TOO MANY RIGHTS

1,147 PEOPLE HAVE BEEN SNARED IN ASHCROFT’S TERROR PROBE

FOR A DEMOCRATIC nation at war, deciding how much freedom to relinquish 

in search of security is an unavoidable dilemma. Some choices are easy. Pat-downs 

before boarding airplanes? Absolutely. Men in military fatigues randomly searching 

vehicles at bridges and tunnels into the city? Certainly. Metal detectors at the entrances to sports arenas? Sure. Such intrusions are little more than inconveniences 

and their contribution to public safety is obvious. The choices get tougher when the 

intrusions are more clandestine, the security justification is less direct and the cost 

is measured in loss of privacy or liberty rather than mere inconvenience. Congress 

made those kinds of choices when it enacted an anti-terrorism law six weeks after 

the Sept. 11 attacks on the Pentagon and the World Trade Center. Washington 

nudged the balance toward security by authorizing roving wiretaps, broader surveillance of the Internet, longer detention of non-citizens without charges and wider 

sharing within government of information collected by law enforcement. Those 

tough but necessary steps were hammered out through weeks of principled bipartisan negotiation. 

But before the ink was dry on that sweeping expansion of law enforcement power, 

the administration unilaterally pushed the envelope further with orders for military 

tribunals, detentions and dragnets, and eavesdropping on conversations between attorneys and their clients. The motive, of course, is to prevent additional terrorist 

attacks. The burden for Congress, the courts and the nation is to determine where 

the line should be drawn between what’s legal and acceptable and what isn’t in 

these unprecedented times. That’s the only way to know when officials go a step too 

far, as they may have with detentions, as they certainly have when eavesdropping 

on attorneys and their clients and as they will if President George W. Bush opts 

for military tribunals for people arrested on American soil. 

SECRET JUSTICE

Osama bin Laden and his henchmen have a price on their heads and a shrinking 

corner of Afghanistan in which to hide. The prospect that some will be taken alive 

is real. If caught, they - as well as anyone in the United States believed to be a 

member of the al-Qaida network - could face trial by military tribunal with few of 

the legal protections customary in U.S. courts. 

Secret military trials and summary executions are not the face of justice that 

America should show to the world. While they may be appropriate for combatants 

captured in the field in Afghanistan, such trials would be an abomination when suspects are arrested in the United States. 

Unfortunately, all it will take to strip stateside suspects of customary legal protections is an assertion by Bush that someone who is not a U.S. citizen is in cahoots 

551

with al-Qaida, or has engaged in international terrorism, conspired to do so or harbored others who have. No evidence supporting the assertion is required. 

The tribunals could conduct trials in secret. A panel of senior military officials, 

not a jury, would sit in judgment. They wouldn’t need a unanimous verdict to convict or to impose a death sentence. Evidence inadmissible in any U.S. civilian court 

would be allowed. The standard of proof could be something less than guilt beyond 

a reasonable doubt. And there would be no judicial appeal. Only Bush or his defense 

secretary could review the tribunals’ decisions. 

The nation has a long, if undistinguished, history of wartime military tribunals. 

They were used during the Civil War to try Confederate saboteurs. And during 

World War II, the Supreme Court upheld a military tribunal’s convictions and death 

sentences for a handful of German agents who came ashore in New York and Florida intent on sabotage. 

Those situations do not directly parallel today’s undeclared war against a shadowy enemy that represents no nation. During the civil war, Southern states were 

in open rebellion against the government. In the 1940s, the United States had officially declared war and the men executed were soldiers of an enemy nation. 

TWO STANDARDS

Senate Judiciary Committee Chairman Patrick Leahy, (D–Vt.) is right to worry 

that Bush’s order creating the tribunals ‘‘sends a message to the world that it is 

acceptable to hold secret trials and summary executions, without the possibility of 

judicial review, at least when the defendant is a foreign national.’’ Embracing two 

standards of justice, one for Americans and another for everyone else, ‘‘could put 

U.S. citizens abroad, including military personnel and peacekeepers, at grave risk.’’ Bush countered that because of national security concerns ‘‘the option to use a 

military tribunal in the time of war makes a lot of sense. It is in the interests of 

the safety of potential jurors that we have a military tribunal.’’ Security during terror trials in U.S. courthouses is an obvious concern. But such 

trials have been safely and successfully conducted before in cases arising from the 

1993 bombing of the World Trade Center [trial pictured, below] and the 1998 bombings of American embassies in Africa. Before exercising the extraordinary option of 

military tribunals, Bush should make the case that the federal courts and security 

apparatus are not up to the job. 

DETENTIONS AND DRAGNETS

As the job of federal law enforcement has inexorably shifted from investigating 

crimes to preventing terrorism, the threat to civil liberties has grown. 

The government is holding hundreds of people captive without revealing who 

many are, the charges against them or the need for such secrecy. At last count, 

1,147 people had been snared in Attorney General John Ashcroft’s terror investigation—185 for immigration violations. Others have been charged with crimes unrelated to terrorism. A small number are being held indefinitely as material witnesses. While some people have been released, most are still in custody. 

Justice Department officials say they have provided ‘‘as much information as possible’’ about the detainees ‘‘within the bounds of privacy regulations, grand jury regulations and judges’ specific orders.’’ Congress wants more detail so it can see if the 

detentions are necessary to protect the nation. After failing for weeks to respond to 

letters from an increasingly exasperated Leahy and others in Congress, Ashcroft has 

agreed to appear before the Senate Judiciary Committee. He must be prepared to 

provide real answers. 

While he’s at it, Ashcroft should also respond to questions about his request that 

local police track down and interview 5,000 people who entered the country on student or tourist visas, most from Mideast countries. Officials say they are not criminal suspects but may have information about terrorists. Voluntary interviews are 

fair game. But the request has occasioned concern about racial profiling and possible 

violations of local laws prohibiting police from gathering intelligence for political 

purposes. Police in Portland, Ore., last week became the first to say no to Ashcroft’s 

request. 

LAWYERS, CLIENTS AND FEDS

Ashcroft should also be grilled about his unilateral decision to allow government 

monitoring of conversations and letters between attorneys and their terrorist-suspect clients in custody. The policy is unjustifiable. 

Ashcroft is worried that lawyers will ferry information between terrorists behind 

bars and conspirators on the outside. So far, based on his assertion of ‘‘reasonable 

suspicion,’’ Ashcroft has authorized eavesdropping on 13 suspects and their attorVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00187 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
552

neys. That’s a troubling expansion of police power and a serious erosion of the right 

to counsel. The inability to speak candidly with a lawyer compromises the right to 

effective counsel, which is a basic component of the right to due process. Officials 

should instead seek court orders for wiretaps and surveillance of lawyers they suspect of being conspirators and track their conversations with others after they leave 

their clients. 

American citizens don’t have to worry right now that they will be subject to these 

troubling White House initiatives. And if ever there was an unsympathetic law enforcement target, the foreign-born terrorist is it. 

But American-style civil liberties allow individuals the presumption of innocence 

and shield them from the crushing weight of government power until they are 

proved guilty. Those legal protections have been honed through centuries of experience to accomplish their objectives without crippling law enforcement. They protect 

the innocent, as well as assuring that guilt is judged fairly. They should not be circumvented lightly.

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

fEdition—Final 

DISAPPEARING IN AMERICA

Thousands of detainees being held in secret by the government; wiretaps on prisoners’ conversations with their lawyers; public debate about the advisability of using 

torture to make suspects talk. Two months into the war against terrorism, the nation is sliding toward the trap that we entered this conflict vowing to avoid. Civil 

liberties are eroding, and there is no evidence that the reason is anything more profound than fear and frustration. 

We trust the Bush administration is not seriously considering torture—an idea 

that seems more interesting to radio talk shows and columnists than to government 

officials. But Attorney General John Ashcroft has been careless with the Constitution when it comes to the treatment of people arrested in the wake of Sept. 11, raising fears he will be similarly careless when it comes to using the broad new investigative powers recently granted him by Congress. A new rule just imposed by Mr. 

Ashcroft allows the government to listen in on conversations and intercept mail between some prison inmates and their lawyers—in effect suspending the Sixth 

Amendment right to effective counsel. He has also refused to provide basic information about the 11,000plus people who have been arrested and detained in the course 

of the government’s terrorism investigation. Even the White House seems uninformed. Questioned about the mass detentions early last week, the president’s 

spokesman, Ari Fleischer, responded that ‘‘the lion’s share’’ had been released after 

questioning. He was forced to backtrack and concede that he did not know any exact 

numbers when the Justice Department gingerly noted that a majority of all detainees remained in custody. 

To justify these extreme measures, the administration has been floating theories 

about what detainees might have done or known, which turn out upon further investigation to be unfounded. The Justice Department has backed away from Mr. 

Ashcroft’s recent suggestion that three Arab men in custody in Michigan had advance knowledge of the Sept. 11 hijackings. Although the men were suspected of 

having links to Al Qaeda at the time of their arrest, law enforcement officials have 

said that no hard evidence to that effect has since emerged. 

The limited need for secrecy while investigating domestic terrorism hardly justifies blanket stonewalling. Mr. Ashcroft says that his strategy of ‘‘aggressive detention of lawbreakers and material witnesses’’ has been vital in preventing new horrors. That assertion has to be taken on blind faith, and it would be easier to accept 

if the attorney general had shown more overall restraint. But his definition of the 

Bill of Rights includes eavesdropping on lawyerclient conversations and withholding 

from the public such key facts as the identities of those still in custody, the reason 

for their continued detention—including any charges filed—and the facilities where 

they are being held. The secrecy even extends to refusing to explain the resort to 

secrecy. Meanwhile, reports suggest that some detainees cleared of any connection 

with terrorism have been held under harsh conditions for prolonged periods, and denied a chance to notify relatives of their whereabouts. 

It is time the White House stepped in. Just as President Bush advises Americans 

to learn to lead their normal lives while being ever watchful for terrorism, the JusVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00188 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
553

tice Department can investigate domestic attacks while respecting the basic rights 

that we are in this war to preserve. http://www.nytimes.com

Editorial in the New York Times, November 16, 2001

fA TRAVESTY OF JUSTICE

President Bush’s plan to use secret military tribunals to try terrorists is a dangerous idea, made even worse by the fact that it is so superficially attractive. In 

his effort to defend America from terrorists, Mr. Bush is eroding the very values 

and principles he seeks to protect, including the rule of law. 

The administration’s action is the latest in a troubling series of attempts since 

Sept. 11 to do an end run around the Constitution. It comes on the heels of an announcement that the Justice Department intends to wiretap conversations between 

some prisoners and their lawyers. The administration also continues to hold hundreds of detainees without revealing their identities, the charges being brought 

against them or even the reasons for such secrecy. 

The temptation to employ extrajudicial proceedings to deal with Osama bin Laden 

and his henchmen is understandable. The horrific attacks of Sept. 11 give credence 

to the notion that these foreign terrorists are uniquely malevolent outlaws, 

undeserving of American constitutional protections. Military tribunals can act swiftly, anywhere, averting the security problems that a high-profile trial in New York 

or Washington could pose. 

But by ruling that terrorists fall outside the norms of civilian and military justice, 

Mr. Bush has taken it upon himself to establish a prosecutorial channel that answers only to him. The decision is an insult to the exquisite balancing of executive, 

legislative and judicial powers that the framers incorporated into the Constitution. 

With the flick of a pen, in this case, Mr. Bush has essentially discarded the rulebook 

of American justice painstakingly assembled over the course of more than two centuries. In the place of fair trials and due process he has substituted a crude and 

unaccountable system that any dictator would admire. 

The tribunals Mr. Bush envisions are a breathtaking departure from due process. 

He alone will decide who should come before these courts. The military prosecutors 

and judges who determine the fate of defendants will all report to him as commander in chief. Cases can be heard in secret. Hearsay, and evidence that civilian 

courts may deem illegally obtained, may be permissible. A majority of only twothirds of the presiding officers would be required to convict, or to impose a death 

sentence. There would be no right of appeal to any other court. 

American civilian courts have proved themselves perfectly capable of handling terrorist cases without overriding defendants’ basic rights. Federal prosecutors in New 

York recently won guilty verdicts against bin Laden compatriots who were accused 

of bombing two American embassies in Africa in 1998. Osama bin Laden himself 

was indicted in those attacks. Federal courts have ample discretion to keep sensitive 

intelligence under seal, while still affording defendants a legitimate adversarial 

process. The law already limits the reach of the Bill of Rights overseas. American 

troops need not show a warrant before entering a cave in Afghanistan for their findings to be admissible at trial in the United States. 

Using secretive military tribunals would ultimately undermine American interests 

in the Islamic world by casting doubt on the credibility of a verdict against Osama 

bin Laden and his aides. No amount of spinning by Mr. Bush’s public relations team 

could overcome the impression that the verdict had been dictated before the trial 

began. Reliance on tribunals would also signal a lack of confidence in the case 

against the terrorists and in the nation’s democratic institutions. 

A better way to administer justice must be found. If Mr. Bush is determined to 

bring terrorists to trial abroad, he should ask the United Nations Security Council 

to establish an international tribunal like the one set up to deal with war crimes 

in the Balkans. The proceedings of this court have been fair and effective, and it 

is respected around the world. If Slobodan Milosevic can be brought to trial before 

such a court, so can Osama bin Laden. 

More than half a century ago the United States and its allies brought some of 

history’s most monstrous criminals to justice in Nuremberg, Germany. In his opening statement at the trial of Nazi leaders, Robert Jackson, the chief American prosecutor, warned of the danger of tainted justice. ‘‘To pass those defendants a poisoned 

chalice is to put it to our lips as well,’’ he said. President Bush would be wise to 

heed those words.

f554

Editorial in the New York Times, December 2, 2001

JUSTICE DEFORMED: WAR AND THE CONSTITUTION

The inconvenient thing about the American system of justice is that we are usually challenged to protect it at the most inopportune moments. Right now the country wants very much to be supportive of the war on terrorism, and is finding it hard 

to summon up much outrage over military tribunals, secret detentions or the possible mistreatment of immigrants from the Mideast. There is a strong temptation 

not to notice. That makes it even more important to speak up. 

After the brutal attacks of Sept. 11, the Bush administration began building a 

parallel criminal justice system, decree by decree, largely removed from the ordinary 

oversight of Congress and the courts. In this shadow system, people can be rounded 

up by the government and held at undisclosed locations for indefinite periods of 

time. It is a system that allows the government to conduct warrantless wiretaps of 

conversations between prisoners and their lawyers, a system in which defendants 

can be tried and condemned to death by secret military tribunals run according to 

procedural rules that bear scant resemblance to normal military justice. 

The extreme nature of these new measures and the arbitrary way in which they 

were adopted are stirring a growing uneasiness among both Republicans and Democrats in Congress, as well as America’s overseas allies. Yet so far the voices of opposition have been timid. It is never easy to criticize a president in wartime. It is especially difficult during this war, which began with the killing of thousands of civilians 

here at home. 

But if the antiterrorism effort is to be a genuine success, Americans must speak 

up. We do not want history to record this as one of those mixed moments in which 

the behavior of our government failed to live up to the performance of our troops 

in the field. We do not want to remember this as a time when the nations of the 

world united in a campaign against terrorists, and then backed away when America 

attempted to prosecute foreign nationals in secret trials conducted according to unfair rules. 

The administration has awarded itself some of these powers, which go well beyond 

those just granted in the antiterrorism legislation Congress approved at its request 

only a few weeks ago. It is now reported that Attorney General John Ashcroft is 

considering a plan to relax rules barring the Federal Bureau of Investigation from 

spying on domestic religious and political groups without probable cause. The 

Founding Fathers, properly wary of an unrestrained executive branch, created our 

system of checks and balances precisely to guard against a president and his aides 

grabbing powers like these without Congressional approval or the potential for judicial review. Mr. Ashcroft’s appearance before the Senate Judiciary Committee this 

week should provide an opportunity for senators from both parties to express their 

concerns. 

SECRET DETENTIONS

One of the most troubling moves by the administration has been the secret and 

in some cases prolonged detention of suspects rounded up after Sept. 11. The Justice 

Department, which has offered a shifting series of explanations as to why this is 

necessary, most recently suggested that it was responding to the possibility that 

Osama bin Laden might have sent ‘‘sleeper’’ agents to the United States. The American system does not hold with the idea of incarcerating a large group of people who 

it seems to have no credible reason to believe are dangerous, out of vague concern 

that somewhere among them might be a future law-breaker. 

The administration certainly has a right to arrest people who are in the country 

illegally, and deport them after a judicial hearing. If the federal government had 

consistently kept track of visitors who failed to leave at the appointed time, it would 

have been harder for the terrorists to carry out their attacks in, New York and 

Washington. But there appears to be no evidence that the vast majority of those 

picked up on immigration charges are guilty of anything else, and the punishment 

must fit the crime. Now, the places they are held and in most cases their names 

are being kept from the public. Meanwhile there is mounting anecdotal evidence 

suggesting that some detainees have been held under harsh conditions with limited 

access to legal counsel. 

Mr. Ashcroft retreated last week from some of his stonewalling and filled in certain previously missing details about 548 people in custody for immigration violations, while still refusing to reveal their names. He did release the names, along 

555

with other details, for 93 people charged with other, mostly minor crimes. But it 

was far short of the sort of disclosure the situation calls for. 

MILITARY TRIBUNALS

It is by no means clear that the president has the authority to set up military 

tribunals without specific Congressional authorization. For the administration to act 

unilaterally in this sphere is no trifling matter. Beyond trespassing on the separation of powers, it could undercut the legality of any military tribunal proceedings. 

The precedent the administration cites - Franklin Roosevelt’s use of secret military 

commissions to try eight German saboteurs caught on American soil during World 

War II - is not reassuring. That trial, which actually did have the support of a Congressional declaration, was an embarrassing skirting of the legal process that occurred mainly to cover up the F.B.I.’s failure to listen when one of the saboteurs 

attempted to confess and turn in his comrades. 

The military tribunals authorized by President Bush have little relation to actual 

military justice. Under normal military law, trials are not closed to the public, defendants have a right to review all the evidence presented against them, and they 

cannot be sentenced to death without a unanimous decision by the officers who sit 

as judges. Defendants also can appeal their cases to higher military courts, and to 

the Supreme Court. The Bush courts are free to proceed in secret, to withhold evidence from defendants and to deliver capital sentences if two-thirds of the judges 

consent. 

Perhaps most disturbing is the fact that under the administration’s order, the 

president’s power to insist on military justice is not limited to accused terrorists who 

are captured overseas. The order’s breadth is astonishing, allowing for the indefinite 

incarceration and trial of any non-citizen the president deems to be a member of 

Al Qaeda, to be involved in international terrorism of any type, or to be harboring 

terrorists. After Sept. 11, Americans were introduced to any number of homeowners 

who sheltered the men who were about to become hijackers, with no realization that 

they were anything but students. The scope of these powers should make the potential for abuse clear. The fact that the administration drew them that way should 

undermine confidence in its self-restraint. 

FAITH IN THE COURTS

The Bush administration appears to have no faith in the American criminal justice system’s ability to try terrorists fairly and openly, despite the fact that prosecutors have successfully brought to justice the men accused of the first World Trade 

Center bombing and the attack on the American embassies in Kenya and Tanzania. 

Civilian courts are not as fragile as the administration fears. For one thing, longstanding federal laws make it possible to sanitize intelligence information so that 

it can be introduced as evidence in trials without compromising spying methods. 

Courts have also given greater latitude to prosecutors in bringing overseas defendants to trial even if they have not been accorded a traditional Miranda warning 

about their rights before they are questioned after their capture. 

The administration has argued that even if the powers it is seizing are broad, it 

will not use them abusively. This has been a constant theme of Mr. Ashcroft and 

the administration in general - that they are people who can be trusted to use these 

broad, repressive rules wisely. That is not the way the American system works. This 

is a nation built around the rule of law, not faith in the goodness of particular officials. 

At a time when the nation is reaching out to create and maintain a global coalition against terrorism, the Bush administration is taking us down a path that will 

surely wind up embarrassing the country and undermining our own standing as a 

defender of international human rights and global justice. The United States, which 

constantly criticizes other countries for holding secret trials, and for refusing to 

guarantee political prisoners due process, is breaking faith with its own standards. 

It is no wonder that European countries are uneasy about extraditing anyone to face 

such tribunals. Our country assures the world that its case against Osama bin 

Laden is a firm one, but if he is tried in secret, large parts of the world will never 

believe in his guilt. 

ONE RULE OF LAW

The administration has been able to push so far down the road toward negating 

civil liberties without encountering much resistance because the parallel system it 

is creating only affects non-citizens. Mr. Ashcroft, for example, is not proposing to 

wiretap the conversations of American prisoners as they talk to their attorneys. 

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These are special rules for outsiders, a fact that is supposed to make those of us 

on the inside feel safe. 

The country does treat non-citizens differently from Americans. Most important, 

authorities can deport them if they fail to live up to the terms of their visas. But 

the right to a fair trial, to consult with a lawyer beyond the range of government 

microphones and protection against being held in secret for minor crimes are not 

for Americans alone. We believe that they are the rights of all human beings. Our 

history is a story of continuous struggles to keep the government from sectioning 

off one segment of humanity as unworthy of the same basic civil rights as everyone 

else. This is not the time to start infringing the rights of people whose only relationship with international terrorists may be a shared nationality, religion or ethnic 

background. 

We will be judged not by how we hold to our values when it is easy, but when 

it is difficult. The world is watching.

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

fROOTING OUT TERRORISTS JUST BECAME HARDER

The debate about President Bush’s order allowing suspected terrorists to be tried 

by military courts has focused on questions of constitutionality. There is an additional, practical concern: The order may actually make it harder to prevent and punish terrorism. 

Law enforcement is increasingly a global effort, and nowhere more so than in the 

fight against terrorism. Federal agents routinely exchange information with foreign 

police and seek to bring criminals arrested abroad to the United States for trial. But 

that cooperation is imperiled when foreign governments don’t trust us to respect the 

basic rights of the people we ask them to send us. Just two weeks ago, Spain said 

it would not extradite eight suspected terrorists without assurances that their cases 

would be kept in civilian court. Thus, even without a single military trial, the order 

is already undermining our ability to bring terrorists to justice. 

The order can also harm our ability to participate in foreign investigations of terrorism against Americans abroad, like the bombing of the Khobar Towers or the attack on the destroyer Cole. In such cases, the Federal Bureau of Investigation tries 

to become as involved as possible, lest a suspect be executed by the host government 

before our agents can question him or follow up on leads to other terrorists. But 

our requests will be less persuasive when we claim the right to subject foreign nationals to secret military trials and even execute them without judicial review. 

Actually using military tribunals could also reduce our ability to uncover and 

prosecute terrorist cells operating in this country. The president’s order could apply 

to a green-card holder who has lived in America for decades and is suspected of only 

tenuous ties to terrorism, but not to an American citizen who actually carries out 

a deadly plot for Al Qaeda—like Wadih el-Hage, who was recently convicted (in a 

civilian court) for bombing the American embassies in Kenya and Tanzania. This 

discrepancy causes at least two problems. 

First, it threatens a basic tactic in fighting complex criminal organizations: prosecuting a lowlevel member to help develop more evidence for another case against 

someone higher in the organization’s chain of command. Indeed, much of what law 

enforcement now knows about Al Qaeda was developed as a result of civilian trials 

and investigations. But if one suspected terrorist is tried by a military tribunal 

without the usual constitutional safeguards, important evidence uncovered in that 

trial could be suppressed on constitutional grounds in later civilian trials, thus hampering our ability to prosecute the full range of people engaged in terrorism. 

Second, prosecutors have greater success when they put as many defendants on 

trial at the same time as possible. For two decades they have used the federal racketeering law which was recently amended to apply in terrorism cases—to do just 

that. This tactic allows the prosecution to paint a fuller picture of the organization 

for the jury, and it helps secure convictions, especially against lower-level members 

who might fare better if tried alone. Since President Bush has said the order will 

be used sparingly, some terrorism defendants tried in civilian court could have a 

better chance of being acquitted because their co-conspirators are not in the courtroom with them. There is no need to take such chances. 

The president argues that military tribunals will protect civilian jurors against reprisals from terrorists, but federal agents have fully protected judges, jurors and 

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tected from disclosure in civilian trials by the Classified Information Procedures Act. 

And the administration is unconvincing when it argues that evidence seized in a 

‘‘war zone’’ would be difficult to authenticate for use in civilian courts. Federal civilian courts have a low standard for authentication—it boils down to asking, ‘‘Is it 

more likely than not that this evidence is what you say it is?’’ It’s almost inconceivable that a military tribunal could allow evidence to be admitted more easily and 

still claim to be fair. 

Our government has decades of experience and success in using civilian courts to 

combat organized crime, and it has successfully applied that experience to fighting 

terrorism. Abandoning that system for military tribunals needlessly blunts some of 

our society’s most effective weapons in that fight. 

James Orenstein is a former federal prosecutor and was associate deputy attorney 

general from 1999 to 2001.

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

Birmingham, Alabama 

f The Honorable Senators Jeff Sessions and Charles Schemer 

This is in regards to the Military Tribunal that you requested. 

In my 23 years in the military my associates and I were of the opinion that there 

was never a case where the person on trial was incorrectly judged, either guilty or 

innocent. Unlike civil courts I contribute a lot of this to the fact that cases cannot 

be thrown out based on trivial technicalities. Also the fact that one individual can 

block a decision by a jury in a civil court is a catastrophe 

Finally, while serving in Korea as a wing operations officer I was asked by a defendant to be has defense attorney in a they case. This afforded me an opportunity 

to see a military court in action. The base legal officer, who is required to be a law 

school graduate, did a remarkable job as judge. Incidentally the young airman was 

found innocent. The trial law lawyer was a law school graduate also. 

A sampling of the people I have tallied to here are in favor of President Bush’s 

plan to use a military tribunal for the terrorists war criminals. 

Our Mission: ‘‘To turn unchurched people into Spirit-.filled followers of Jesus 

Christ

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

’’

Washington, D.C. 

f Soon after the Sept. 11 tragedies, President Bush delivered a stirring address to 

the American people. These vicious attacks against our nation, the president said, 

were designed to strike not only the Pentagon and the World Trade Center towers, 

but also the core values of our democracy. The terrorists may have taken thousands 

of innocent lives, but they could not take the fundamental freedoms that are enshrined in our Constitution. However, People For the American Way is deeply concerned that unilateral, arbitrary powers being exercised by Attorney General John 

Ashcroft and others in the administration-under the guise of fighting terrorism-subvert a critical principle on which the Constitution was framed: the principle of 

‘‘checks and balances.’’

To Thomas Jefferson, a system of checks and balances was vital. Jefferson wrote 

that he and other founders labored to create a government that ‘‘should not only 

be founded on free principles,’’ but also ensure that ‘‘the powers of government 

should be so divided and balanced. . .that no one (branch) could transcend their 

legal limits, without being effectively checked and restrained by the others.’’ Sadly, 

the attorney general and his allies are acting in ways that threaten to circumvent 

these checks and balances, effectively amending our Constitution and our laws by 

executive fiat. 

People For the American Way has applauded both the president and the attorney 

general for affirming American pluralism and condemning hate crimes against people who are-or are perceived to be-Muslims or Arab Americans. However, a spate 

of orders approved recently by Mr. Ashcroft and the Justice Department are extremely troubling. They have ignored, even discarded, fundamental constitutional 

principles. Even worse, they have revealed a strong disdain for two critical pillars 

of our democracy: Congress and the courts. 

558

Indeed, not long after the ink was dry on the extremely expansive counter-terrorism law, the attorney general and others in the administration marched forward 

with a series of new orders and policies that undermine the long-held principle of 

attorney-client privilege; attempt to legitimize the withholding of information about 

people being detained; establish military tribunals with no rights of appeal; and 

pose other serious threats to the Constitution and our democratic principles. These 

orders endanger the right to legal counsel, the right to due process, and other constitutional freedoms. 

The vision of Jefferson and other founders has been cast aside by Mr. Ashcroft 

and the Justice Department. The attorney general’s public statements pay lip service to oversight, but his actions suggest that he believes the Executive Branch is 

free to justify and execute virtually any action in the name of fighting terrorism and 

then police the action on its own terms-without proper oversight from the courts or 

Congress. 

The recently signed executive order on military tribunals reflects the growing arrogance of senior officials in the Executive Branch. First, the administration embraced military tribunals without first consulting with Congress. It is also noteworthy that unlike the example that the administration has cited to justify this executive order-German saboteurs during World War II—the current push for military 

tribunals is occurring at a time when Congress has not approved a formal declaration of war. Second, we’re not talking about an order that simply covers people who 

enter our country illegally to commit sabotage or who are captured on the battlefield. The order is worded so broadly that it could apply to legal residents who have 

lived in the U.S. for many years. Third, absent from the order are several key rights 

that the Uniform Code of Military Justice provides-a public trial, proof beyond a 

reasonable doubt, the right of the accused to select counsel, and rights to an appeal. 

The administration hasn’t embraced military trials, but rather its version of a military trial-the complete details of which it has not disclosed. 

In addition to the other branches of government, another important ‘check’ on the 

abuse of power is the people. Writing in the Federalist papers, Alexander Hamilton 

identified the ‘‘two greatest securities’’ that the American people had to hold their 

elected officials accountable. The first was ‘‘the restraints of public opinion,’’ and the 

second was ‘‘the opportunity of discovering with facility and clearness’’ whether government officials have abused their authority. Sadly, the public is in a poor position 

to assess whether the arrest and detention of more than a thousand people by federal officials are in keeping with our democratic values. This is because the attorney 

general has provided very little information about the detainees that were apprehended in the wake of the Sept. 11 tragedies. 

People For the American Way is one of numerous civil liberties organizations that 

recently filed a Freedom of Information Act request to determine the full scope of 

these detentions. But our FOIA request has been denied. We know that at one point 

as many as 1,147 people were being held by federal officials under their arrest-anddetention campaign. Yesterday, the attorney general released incomplete numbers, 

revealing that more than 600 people remain in federal custody in connection with 

the Sept. l 11th investigations. The attorney general provided figures on the number 

of detainees being held on immigration violations or federal criminal charges. But 

the Justice Department has yet to update the total number in custody. And, during 

yesterday’s press conference, Mr. Ashcroft declined to release even the number of 

detainees being held as ‘‘material witnesses.’’ The attorney general refused to release names of most of the detainees. Even assuming that Mr. Ashcroft’s reasons are valid, there is no justification for why the Justice Department continues to withhold other important information about detainees-for example, how long each person 

has been in federal custody; what immigration law, if any, they are accused of violating; and the names of their defense attorneys. 

Furthermore, it is not clear when or if Mr. Ashcroft will provide updated information on the number of detainees in the futureor if the figures he released yesterday 

were simply intended to defuse the controversy for now. The extremely limited information that has been made public hinders the ability of the civil rights and legal 

communities to adequately monitor the reasons, the length and the conditions of 

these detentions. In addition, federal officials have failed to share important information with Congress and to consult with the House and Senate in other meaningful ways that provide oversight. 

We firmly believe that Congress must move quickly to ensure that anti-terrorism 

efforts are carried out in a way that balances our national security with the constitutional freedoms that we cherish. We believe that the following goals should 

guide Congress in its actions:

• Congress should insist that the administration restore to the judicial and 

legislative branches their rightful and constitutional roles. Our Constitution 

559

establishes a system of checks and balances. Through the years, these 

checks and balances have helped to curtail excesses on the part of the Executive Branch. Meaningful judicial review and oversight should not be shortcircuited by the attorney general or other federal officials. Likewise, it has 

been disturbing to see this administration circumvent Congress’ critical 

role, for example, in consenting to the establishment of military tribunals 

and the standards that would apply to these trials. Congress should put 

procedures in place that enable ongoing consultation with the attorney general and other law enforcement officials. 

• Congress should urge federal law enforcement officials to follow and respect existing legal avenues. There are already sufficient legal avenues 

through which the attorney general and federal officials can seek authority 

for taking extraordinary actionssuch as detaining suspects for extended periods of time-in the interest of protecting the health and safety of Americans. For example, if they feel extraordinary circumstances justify the request, federal officials already have the ability to ask a judge to permit 

them to violate attorney-client privilege. Allowing the attorney general and 

the Department of Justice to delegate to themselves new and sweeping 

powers-on top of the immense new powers granted by recent legislation 

jeopardizes our constitutional liberties. 

• House and Senate leaders should develop a plan to provide sufficient oversight for the nation’s anti-terrorism efforts. In recent weeks, the chairs of 

various committees in both the House and Senate have claimed authority 

or expressed a desire to monitor the federal government’s efforts to prevent 

and combat terrorism. To avoid duplicative efforts and ensure proper oversight, we urge the leadership in both chambers to determine, in a bipartisan spirit, the appropriate committees to fulfill this critical role. 

• A Congressional board of inquiry should be established to examine the 

events and environment within which the Sept. 11 tragedies occurred. This 

inquiry should review the work of our nation’s intelligence forces and law 

enforcement agencies, including what they knew and how they were operating and cooperating in the weeks and months before these terrorist attacks. This effort would closely resemble the government inquiry that was 

conducted to examine how and why the attack on Pearl Harbor occurred. 

These efforts should be conducted in the interest of learning lessons and 

preventing future catastrophes, rather than casting blame. Such efforts also 

could be valuable in determining whether there is truly a need for changes 

in federal investigative or police powers, rather than basing changes on the 

assumptions of the attorney generalwithout Congressional or judicial approval.

Finally, it is also worth noting that in today’s Washington Post, eight former highranking FBI officials-including a former director-raise serious concerns about the arrest-and-detention campaign that has been waged by John Ashcroft and the Justice 

Department. Their criticism covered three areas: The Ashcroft approach hasn’t 

worked in the past, it might undercut efforts to infiltrate terrorist cells, and it could 

lead to abuses of civil liberties. Former FBI Director William Webster said that during his tenure the agency used ‘‘good’’ and ‘‘lawful’’ investigative techniques, and he 

warned that the Ashcroft approach 

f‘‘carries a lot of risk with it.’’

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

SEIZING DICTATORIAL POWER

WASHINGTON—Misadvised by a frustrated and panic-stricken attorney general, a 

president of the United States has just assumed what amounts to dictatorial power 

to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for 

rough justice, we are letting George W. Bush get away with the replacement of the 

American rule of law with military kangaroo courts. 

In his infamous emergency order, Bush admits to dismissing ‘‘the principles of law 

and the rules of evidence’’ that undergird America’s system of justice. He seizes the 

power to circumvent the courts and set up his own drumhead tribunals—panels of 

officers who will sit in judgment of noncitizens who the president need only claim 

‘‘reason to believe’’ are members of terrorist organizations. 

560

Not content with his previous decision to permit police to eavesdrop on a suspect’s conversations with an attorney, Bush now strips the alien accused of even the limited rights afforded by a court-martial. 

His kangaroo court can conceal evidence by citing national security, make up its 

own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court. 

No longer does the judicial branch and an independent jury stand between the 

government and the accused. In lieu of those checks and balances central to our 

legal system, noncitizens face an executive that is now investigator, prosecutor, 

judge, jury and jailer or executioner. In an Orwellian twist, Bush’s order calls this 

Soviet-style abomination ‘‘a full and fair trial.’’

On what legal meat does this our Caesar feed? One precedent the White House 

cites is a military court after Lincoln’s assassination. (During the Civil War, Lincoln 

suspended habeas corpus; does our war on terror require illegal imprisonment 

next?) Another is a military court’s hanging, approved by the Supreme Court, of 

German saboteurs landed by submarine in World War II. 

Proponents of Bush’s kangaroo court say: Don’t you soft-on-terror, due-process 

types know there’s a war on? Have you forgotten our 5,000 civilian dead? In an 

emergency like this, aren’t extraordinary security measures needed to save citizens’

lives? If we step on a few toes, we can apologize to the civil libertarians later. 

Those are the arguments of the phony-tough. At a time when even liberals are 

debating the ethics of torture of suspects—weighing the distaste for barbarism 

against the need to save innocent lives—it’s time for conservative iconoclasts and 

card-carrying hard-liners to stand up for American values. 

To meet a terrorist emergency, of course some rules should be stretched and new 

laws passed. An ethnic dragnet rounding up visa-skippers or questioning foreign 

students, if shortterm, is borderline tolerable. Congress’s new law permitting warranted roving wiretaps is understandable. 

But let’s get to the target that this blunderbuss order is intended to hit. Here’s 

the big worry in Washington now: What do we do if Osama bin Laden gives himself 

up? A proper trial like that Israel afforded Adolf Eichmann, it is feared, would give 

the terrorist a global propaganda platform. Worse, it would be likely to result in 

widespread hostage-taking by his followers to protect him from the punishment he 

deserves. 

The solution is not to corrupt our judicial tradition by making bin Laden the star 

of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing 

Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 

15,000-pound daisy-cutters and 5,000-pound rock-penetrators. 

But what if he broadcasts his intent to surrender, and walks toward us under a 

white flag? It is not in our tradition to shoot prisoners. Rather, President Bush 

should now set forth a policy of ‘‘universal surrender′′: all of A1 Qaeda or none. Selective surrender of one or a dozen leaders—which would leave cells in Afghanistan 

and elsewhere free to fight on—is unacceptable. We should continue our bombardment of bin Laden’s hideouts until he agrees to identify and surrender his entire 

terrorist force. 

If he does, our criminal courts can handle them expeditiously. If, as more likely, 

the primary terrorist prefers what he thinks of as martyrdom,, that suicidal choice 

would be his and Americans would have no need of kangaroo courts to betray our 

principles of justice.

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

f‘VOICES OF NEGATIVISM’

WASHINGTON—Preparing to tell the Senate Judiciary Committee where to get off 

today, Attorney General John Ashcroft lashed out at all who dare to uphold our bedrock rule of law as ‘‘voices of negativism.’’ (A nattering nabob, moi?) 

Polls show terrorized Americans willing to subvert our Constitution to hold Soviet-style’ secret military trials. No presumption of innocence; no independent juries; 

no right to choice of counsel; no appeal to civilian judges for aliens suspected of 

being in touch with terrorists. 

President Bush had no political motive in suspending, with a stroke of his pen, 

habeas corpus for 20 million people; his 90 percent popularity needs no boost. The 

feebleness of the Democrats’ response, however—with the honorable exception of 

Vermont’s Senator Pat Leahy is highly political. Tom Daschle is waffling wildly beVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00196 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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cause he is terrified of being slammed as ‘‘soft on terrorism,’’ which might overwhelm his strategy of running against ‘‘the Bush recession’’ in the 2002 elections. 

With most voters trusting the government with anything, and with an attorney 

general and his hand-picked F.B.I. boss having the publicity time of their lives, one 

might expect us negativists to be in disarray. 

Here’s why we are not: The sudden seizure of power by the executive branch, bypassing all constitutional checks and balances, is beginning to be recognized by cooler heads in the White House, Defense Department and C.I.A. as more than a bit 

excessive. 

Not that they’ll ever admit it publicly; Bush will stick to his shaky line that civil 

courts cannot be trusted to protect military secrets and, as fearful Orrin Hatch 

assures him, jurors will be too scared to serve. But his order asserting his power 

to set up drumhead courts strikes some of his advisers, on sober second thought, 

as counterproductive. 

Set aside all the negativist libertarian whining about constitutional rights, goes 

his newest advice, and forget about America’s moral leadership. Be pragmatic: our 

notion of a kangaroo court is backfiring defeating its antiterrorist purpose. 

At the State Department, word is coming in from Spain, Germany and Britain 

where scores of Al Qaeda suspects have been arrested—that the U.N. human rights 

treaty pioneered by Eleanor Roosevelt prohibits the turning over of their prisoners 

to military tribunals that ignore such rights. That denies us valuable information 

about ‘‘sleepers’’ in Osama bin Laden’s cells who are in the U.S. planning future attacks. (Those zealots who cited F.D.R.’s saboteur precedent forgot about Eleanor.) 

At the C.I.A., data about China, Russia and other closed societies is gleaned from 

debriefing returning travelers. But U.S. kangaroo courts would legitimize harsh proceedings overseas against U.S. business executives, academics and tourists—thereby 

shutting down major intelligence sources. (Interviewing 5,000 Muslim students and 

visitors, however, is seen by our spooks as an excellent opportunity to recruit 

Arabicspeaking agents.) 

At Justice, those not in the Ashcroft-Mueller axis view the tribunals as giving priority to punishment for past attacks rather than helping to prevent future attacks. 

Thus Ashcroft undermines Justice’s justification for its nationwide dragnet. 

At Defense, the hastily drawn order must be translated into a system of trials 

that would not be invalidated by a Supreme Court. Secretary Donald Rumsfeld has 

refused to follow lockstep behind Ashcroft in deriding strict constructionists as negativist. On the contrary, Rumsfeld calls the informed outcry ‘‘useful’’ in refining the 

order The hopeful news is that Rumsfeld has reached outside the Pentagon to get 

advice legal minds not conflicted by administration ties. Lawyers inside the armed 

services are also determined to resist the subversion of the Uniform Code of Military 

Justice by Bush’s diktat. 

Many attorneys friendly to this White House know that order was egregiously ill 

drafted. The White House counsel, Alberto Gonzales, defended the order on this OpEd page by denying or interpreting away its most offensive provisions. That’s his 

signal to the Pentagon general counsel, William Haynes, to give the broadest interpretation to the order’s five words promising non-citizens ‘‘a full and fair trial.’’

Otherwise, our Constitution would be set aside by Cicero’s ancient inter arma silent leges

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

—in time of war, the law falls silent.

fLift Edition 

INVADING A CONFIDENCE

CIVIL LIBERTIES

THE LAWYER-CLIENT—privilege is to the law what the seal of confession is to 

religion. Just as a priest can only tend to the penitent who can confess his sins, 

the attorney can only defend a person with whom he can communicate freely. 

This privilege is ancient, sacrosanct and virtually inviolable. It is a cornerstone 

of an adversary system that accords a suspect the presumption of innocence and a 

lawyer to defend him. A lawyer cannot disclose anything the client says unless the 

information involves an ongoing crime, imminent death or serious bodily harm. If 

a murderer discloses the location of a victim’s body, for example, the lawyer 

shouldn’t tell the police. The privilege is so durable, in fact, that it survives the cliVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00197 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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ent’s death; Kenneth Starr di scovered that when he tried unsuccessfully to pry into 

what Vincent Foster told his lawyer before his suicide. 

For all of these reasons, civil libertarians and many lawyers were shocked by Attorney General John D. Ashcroft’s recent order allowing agents to snoop on communications between terror suspects and their lawyers. Robert Hirshon, president of 

the American Bar Association, said it ran ‘‘squarely afoul’’ of the right to counsel. 

Sen. Patrick Leahy, Democratic chairman of the Senate Judiciary Committee, questioned Mr. Ashcroft’s authority to authorize the surveillance. 

The attorney general issued the rule on an emergency basis, without allowing the 

normal public comment period. It allows the Justice Department to monitor conversations and intercept mail between suspects and their lawyers for up to a year, 

without court order. Mr. Ashcroft must certify that there is a ‘‘reasonable suspicion’’

that a inmate is using communications with his lawyers to ‘‘facilitate acts of terrorism.’’

The Justice Department said it would protect the suspects’ rights by notifying 

them that the government is listening. The monitoring will be conducted by a 

‘‘taint’’ team that will only turn over information to prosecutors or investigators if 

there is an imminent threat of violence or with the approval of a federal judge. None 

of the information could be used in court. 

One troubling aspect of Mr. Ashcroft’s order is that it covers people who have not 

been convicted of crimes, but are being held as material witnesses or on allegations 

of minor immigration or law violations. The government has detained more than 

1,100 people on these grounds since Sept. 11. It won’t release their names, where 

they are detained or the charges against them. The surveillance of these detainees’

conversations with their lawyers deepens their isolation. 

Irwin Schwartz, president of the National Association of Criminal Defense Lawyers, says that the Ashcroft rule would deny a suspect of the right to a lawyer. ‘‘If 

we can’t speak with a client confidentially, we may not speak with him at all,’’ he 

said. 

One of the great challenges of Sept. 11 is to protect America’s safety without sacrificing important rights. Mr. Ashcroft failed to achieve that balance when he invaded the legal confessional.

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

fLift Edition 

ASHCROFT OVERREACHES

CIVIL LIBERTIES

KEY U.S.—senators are complaining, and rightly so, that Attorney General John 

D. Ashcroft is overreaching his mandate to fight terrorism with unilateral plans to 

listen in on lawyers’ conversations with their clients and to try suspected terrorists 

in front of military tribunals. 

‘‘We all agree that there should be justice here, but let’s be a little bit careful how 

we do it,’’ Sen. Patrick J. Leahy, D-Vt., said Sunday on NBC’s ‘‘Meet the Press.’’

Mr. Leahy, chairman of the Senate Judiciary Committee, and some of his colleagues were upset to read in newspapers of ‘‘ad-hoc, outside-the-justice-system 

methods,’’ for combating terrorism. In particular, Mr. Leahy said he was dismayed 

by a surprise rule change that will allow the government to eavesdrop on privileged 

conversations between lawyers and defendants charged with terrorism-related 

crimes. He also disagrees with the administration’s decision that some suspected 

terrorists could be tried by a military tribunal, with less stringent rules on evidence 

and public accessibility. 

Mr. Leahy’s comments about the failure to consult Congress were echoed by the 

ranking Republican on the Judiciary Committee, Sen. Orrin Hatch of Utah. The two 

promised to grill Mr. Ashcroft in December on his actions, and suggested the attorney general set aside ‘‘several hours’’ for this appearance. 

‘‘I think the attorney general owes the country—certainly owes the Congress—an 

explanation,’’ Mr. Leahy said. 

He’s right. Apart from questions of constitutionality, it is important that the administration consult congressional leaders in both parties because they are essential 

allies in the war on terrorism. Mr. Leahy, himself the target of an anthrax-laden 

letter, shepherded the administration’s anti-terrorism legislation, with sweeping 

new legal authority, through the Senate last month. Instead of blind-siding biparVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00198 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
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tisan allies with surprise announcements of draconian tactics (which may be constitutional, but not necessarily desirable), Mr. Ashcroft should be consulting them 

closely. That would not only build unity, but might also help avoid blunders. 

As Mr. Leahy said, ‘‘I don’t know why all this has to be done by fiat at the White 

House. . . .Why not trust the normal process of our government?′′ Indeed. The eyes of the world are on America, and the normal process of our 

democratic government. If we wish to be perceived as a nation that believes in liberty and justice for all, we must behave like one.

Statement of David J. Scheffer, Senior Fellow, U.S. Institute of Peace, 

Washington, D.C., Former U.S. Ambassador at Large for War Crimes 

f Issues (1997-2001) 

(Views expressed in this statement are solely those of the author.) 

REALITY CHECK ON MILITARY COMMISSIONS

President George W. Bush’s order of November 13, 2001, authorizing U.S. military 

commissions to prosecute international terrorists in truncated judicial proceedings 

was a predictable option for him to activate in the campaign against global terrorism. Circumstances no doubt will arise where having this option available will 

facilitate the dual needs of justice and deterrence when particular terrorists or their 

operatives fall into U.S. custody. But Bush Administration officials, with some 

mixed signals, have largely marketed the military commissions as the primary option for prosecution. In reality, military commissions should be the exception, not 

the rule. When used, they should be properly constituted and subject to rules that 

protect the due process rights of defendants and uphold American adherence to the 

rule of law. Our ability to achieve extradition of terrorist suspects to U.S. jurisdiction hangs in the balance. 

There is no legitimate target, civilian or military, for an international terrorist. If 

a terrorist attacks a military target and kills only military personnel, that act is 

still criminal. That is what recent international anti-terrorism conventions and the 

hefty U.S. criminal statutes enacted to prosecute terrorists provide. Keeping terrorists in the terrorist box has its advantages for prosecutors and for achieving justice. 

Using antiterrorism laws in federal courts, prosecutors have demonstrated their 

ability to nail terrorists to the wall in successful trials, respectful of due process 

rights, for the 1993 World Trade Center bombing and the 1998 U.S. Embassy bombings in Africa (involving al Queda defendants). 

In contrast, once a terrorist suspect is categorized as an alleged war criminal or 

combatant and prosecuted before a military commission for violations solely of the 

law of war, his successful prosecution can be impeded. Even if the individual is regarded as an unlawful belligerent because of the character of his warfare, the military commission would be pressed to concede that under certain circumstances that 

alleged war criminal may have had or his colleagues may have future theoretical 

rights to attack legitimate military targets in the armed conflict already recognized 

by the United States, particularly if they take simple steps to transform into lawful 

belligerents. The defendant, particularly an aloof leader or conspirator, may try to 

make the case that he was indeed a lawful belligerent in his particular case and 

that military targets, like the Pentagon, Khobar Towers, and the USS Cole, were 

legitimate strikes. Why would we want to risk conceding any belligerent status, lawful or unlawful, to a terrorist? 

Military commissions have limited jurisdiction over violations of the law of war 

and, if authorized by statute, other offenses. But currently the Uniform Code of 

Military Justice only establishes jurisdiction over the law of war. Article 21 of the 

Uniform Code of Military Justice and the Rules of Court Martial (201(g)) establish 

that for a military commission to extend its jurisdiction beyond the law of war, Congressional action is needed. Absent a new Act of Congress, a U.S. military commission would lack authority to enforce anti-terrorism laws or even crimes against humanity that do not overlap with the law of war. Reliance only on the law of war 

would deny military prosecutors potent laws that have proven their worth in federal 

trials of al Queda defendants. The law of war is not as well adapted to the prosecution of terrorists as are the anti-terrorism laws. For example, conspiring to plan or 

participate in an act of terrorism is easier to prosecute under federal criminal law 

than would be the same conduct under the law of war, which is weak on conspiracy 

charges and probably would require a higher threshold of proof for conduct more 

egregious than that found in the anti-terrorism laws. 

564

Most terrorist suspects who survive lethal force likely will be apprehended by foreign rather than U.S. authorities. Hundreds reportedly already have been detained 

this way. In Afghanistan, thousands of non-Afghan Taliban fighters and al Queda 

suspects currently face the prospect either of a fight to the death or of their surrender to predictably merciless Islamic trials staged by the Northern Alliance and 

over which the United States may exercise little if any control. U.S. military commissions may be largely irrelevant under these circumstances. 

Beyond Afghanistan, foreign officials will not ponder long about whether to extradite terrorist suspects in their custody to U.S. control. The president’s military order 

is drafted so broadly and leaves so many doubts about due process rights that it 

is improbable foreign authorities would extradite terrorist suspects to stand trial in 

any U.S. court. Foreign governments will balk at the paucity of guaranteed due 

process rights in the military commission and refuse to take the predictable heat 

for transferring a terrorist suspect into the black hole promised by the executive 

order. Already, Spain has indicated that it will not extradite key al Queda suspects 

to the United States because of the prospect of trial by military commission and of 

the death penalty. 

Other anti-death penalty governments also will prohibit extraditions to military 

commissions less inclined to waive the death penalty than would U.S. federal courts. 

Even if a foreign government contemplated extraditing a terrorist suspect to a federal court, the military order (Section 2(B)(c)) could require that court to transfer 

the suspect to a military commission that would exercise exclusive jurisdiction, operate in a free-fire zone for due process, and aggressively seek the death penalty. 

Ironically, foreign (particularly European) jurisdictions that hold terrorist suspects and know they could be tried domestically with due process protections falling 

short of those available in U.S. federal courts, will look at American requests for 

extradition and conclude that Washington’s abandonment of credible trial procedures and defendants’ rights makes the United States a poor choice for a fair trial. 

In any event, foreign officials may consider it their own responsibility to bring to 

justice individuals who engaged within their own country to plan or commit terrorist attacks against U.S. targets. In terms of constructing a robust international 

legal architecture for dealing with terrorism, the optics and the practical consequences of having prosecutions in both U.S. and foreign courts is significant. 

The best course now would be to clean up President Bush’s military order with 

U.S. Congressional action that makes military commissions more user friendly for 

foreign authorities holding terrorist suspects and that casts the order as an exceptional option for use only when U.S. federal courts truly cannot assume their rightful role in prosecuting international terrorists.

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f581

AMNESTY INTERNATIONAL—U.S.A. 

December 3, 2001

The Honorable George W. Bush 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, DC 20500

Dear President Bush:

We are writing to express our grave concern over your order authorizing military 

commissions to try suspected terrorists. 

Unless it is rescinded, we fear that dictators and tyrants around the world will 

invoke the Bush Administration’s actions for decades to come when they imprison 

people seeking to stand up for freedom of religion, free speech and other rights enshrined in the United States Bill of Rights and championed by the United States 

worldwide. The trials conducted by such commissions will come and go, but the 

damage that this precedent will cause will continue fox many years and may represent one of the lasting legacies of your Administration. 

We understand that the details of the trials remain to be established and that 

the order does not place a ceiling on the procedures that may be applied by the military commissions. But the fact remains that there is very little ‘‘floor’’ established 

by the order. It permits—even if it does not require—the use of secret evidence and 

secret hearings, fails to establish an adequate burden of proof or to mandate the 

right to counsel or a privilege against self-incrimination, and allows the death penalty without unanimous verdicts. These and other problems render the order itself 

fundamentally flawed, especially as a precedent, even if the procedures ultimately 

established by the Defense Department are better than the order requires. 

Moreover, certain aspects of the order cannot be remedied no matter what procedures are subsequently adopted. The order permits the President to designate any 

non-citizen, including legal United States residents, to be subjected to these procedures without any established standards or the check of independent judicial review 

of such designation. Likewise, although the order directs the Secretary of Defense 

to establish post-trial procedures, it plainly bars any independent review of the 

trials outside of the Executive branch. 

Many nations have argued that the rule of law and due process rights must be 

set aside in order to defend national security. Indeed, American citizens have been 

deprived of their rights abroad based on such arguments. The United States has 

rightly rejected such restrictions and the arguments for them. Thus, when the 

United States, which has been at the forefront of developing and defending minimum standards of due process, issues an order which does not require that the Department of Defense satisfy those standards, the damage done is enormous. We fear 

that many nations will issue identical orders but will then implement them in ways 

that takes full advantage of the inadequate ‘‘floor’’ established by the order. The 

credibility and effectiveness of the United States in opposing such repressive procedures will be seriously harmed by this precedent. 

We also believe that it is beyond dispute that the order, and any trials conducted 

under it, will be seen as illegitimate by the vast majority of nations. To this point, 

the United States has had the overwhelming support of the world community in responding to the crimes committed against United States citizens and the citizens 

of more than 60 other nations on September 11th International law has provided and 

continues to provide ample scope for the United States to respond to these attacks, 

to bring the perpetrators to justice and to obtain convictions. We believe that your 

order will do great harm to the United States efforts to maintain the strong support 

of the world community in its pursuit of the perpetrators of the September 11th attacks. 

582

We respectfully urge you to rescind the order. 

Sincerely. 

WILLIAM F. SCHULZ

Amnesty International— U.S.A.

KENNETH ROTH

Human Rights Watch

GAY MCDOUGALL

International Human Rights Law Group

CATHERINE A—FITZPATRICK

International League for Human Rights

MICHAEL POSNER

Lawyers Committee for Human Rights

LYNN THOMAS

Minnesota Advocates for Human Rights

LEN RUBENSTEIN

Physicians for Human Rights

TODD HOWLAND

Robert F

f— Kennedy Memorial Center for Human Rights

Statement of Herman Schwartz, Professor of Law, American University, 

Washington, D.C. 

PRESIDENT BUSH’S MILITARY COMMISSIONS

President George W. Bush’s order establishing military commissions to try ‘‘international terrorists’’ without our normal due process guarantees has been defended 

with the claim that, in Vice President Dick Cheney’s words, ‘‘they don’t deserve the 

same guarantees and safeguards that would be used for an American citizen.’’ To 

find and dispose of these terrorists, Attorney General John Ashcroft plans to question some 5000 young recent male immigrants and others, in addition to the more 

than 600 currently being detained. 

But who among these people, or among the other 20 million non-citizens in the 

United States, all of whom could potentially be considered not ‘‘deserving’’ full due 

process, is in fact an ‘‘international terrorist?’’ We can’t know that until we try 

them, since whether they are such people is exactly what has to be proved in a trial. 

Yet the use of these secret special tribunals, with their denial of due process right 

from the moment they are detained, presupposes that these people fit that category. 

Instead of being presumed innocent, they are presumed guilty. 

In fact, we may never really know if a person subjected to these trials by commission is guilty of anything. For the process to be triggered, all that the Order requires is that the Attorney General and the President be persuaded by some FBI 

or CIA agent that there is ‘‘reason to believe’’ that a resident noncitizen—someone 

who may have lived in this country peacefully and honorably for many years—has 

committed, aided, conspired or prepared something called ‘‘acts of international terrorism’’ that have some connection with ‘‘injury to or adverse effect on the United 

States, its citizens, national security, foreign policy or economy,’’ or ‘‘harbors’’ a terrorist, not even knowing the person harbored is one. 

And what is an ‘‘act of international terrorism? ‘‘ It is the essence of legality that 

an offense be carefully defined so that people can avoid violating it and prosecutors 

will not be free to define it as they wish. Yet, ‘‘acts of international terrorism, ‘‘

which carries the death penalty, is nowhere defined in the order. It is certainly not 

just violations of the ‘‘laws of war’’ as White House Counsel Alberto R. Gonzales 

claims, for that term does not appear anywhere in the order. Nor does the order 

cover only ‘‘foreign enemy war criminals’’ or ‘‘members or active supporters of A1 

Qaeda,’’ as Mr. Gonzales also claims, but any non-citizen, including long-term permanent residents of the United States, who the President has ‘‘reason to believe’’

has engaged in ‘‘international terrorism.’’ The category may well be defined by the 

Secretary of Defense to include innocent or minor acts, such as contributing to a 

charity that secretly supports terrorists, even though the person doesn’t know the 

true purpose of the charity. It is an indication of the vagueness and breadth of the 

possible offenses that can be created by this order that criminality can be based on 

583

acts that in some perhaps insignificant way ‘‘adversely affect. . .foreign policy or 

[the] economy.’’

The order is equally indefinite with respect to how much evidence is required before someone may be detained as an ‘‘international terrorist.’’ The law normally requires ‘‘probable cause’’ for an arrest or detention, with supervision by a judge either before or soon after the detention. But the order calls only for ‘‘reason to believe’’ and this can be very little, just a reason. It can, for example, be one of the 

unsubstantiated and untested near-rumors reported to the grand jury and now 

made widely available within the government under the USA-PATRIOT Act. Moreover, no judicial review of the justification for believing this reason is allowed, at 

any time. The Wen Ho Lee and other FBI and CIA fiascoes, as well as Ashcroft’s 

own sorry record on civil liberties, offer little assurance that these provisions will 

be administered fairly. 

And once the person is picked up and held, which may be done secretly, he may 

be charged with some ‘‘act of international terrorism,’’ and will have to refute these 

charges without counsel of his choice or perhaps any lawyer at all. A short secret 

proceeding will be held under rules of evidence made up by the Secretary of Defense. He can choose to admit the most unreliable kinds of hearsay and other weak 

evidence, which can be kept secret even from the accused. Mr. Gonzales says these 

trial will not be secret but he can offer no assurances. After all, we still know almost 

nothing about the many hundreds kept in detention since September 11, which 

seems like a more reliable indication of what we can expect. And, as many have 

noted, this is the most secretive administration in recent memory, shown, for example, by the Bush Order keeping presidential papers secret despite congressional legislation intended to make them public. 

This ‘‘trial’’ will be before three military personnel, not independent judges, only 

two of whom need to agree. They need not be convinced of guilt beyond a reasonable 

doubt, even if they impose a death sentence, and there is no right to appeal, even 

within the military system. And there will be no judicial review of the case against 

the accused. Mr. Gonzales claims that there will be ‘‘judicial review’’ in the civilian 

courts, but as he concedes, merely of ‘‘the jurisdiction’’ of the commissions. That only 

determines whether the commission has the authority to try the accused. Judicial 

review of the detention, the procedure, fairness, guilt or innocence, sentence or anything else about the case itself is barred by the order. 

We are told we need not worry because the ‘‘American military justice system’’

is ‘‘the finest in the world.’’ That may indeed be true but only when the proceedings 

are conducted under the Uniform Code of Military Justice. Nothing in the order requires these proceedings to be under the Code but only under such rules as the 

‘‘Secretary of Defense shall issue,’’ which can be made up on an ad hoc basis. 

Attorney General John Ashcroft and other members of the Administration justify 

this drumhead justice because they allegedly fear that without such proceedings, we 

will not be able to convict these ‘‘alien terrorists,’’ assuming that we have the real 

culprits. But we obtained convictions in the World Trade Center and Embassy 

bombings, and without the disclosure of sensitive information about intelligence 

‘‘sources and methods,’’ the other great fear—the carefully administered 1980 

‘‘graymail’’ statute has effectively disposed of many of these fears. Attorney General 

Ashcroft has also complained about lengthy trials but how can one justify ‘‘quickie’’

trials when death or long imprisonment is at stake? 

Finally, the Administration relies on the Supreme Court’s approval of trial by 

military commission in the 1942 German saboteur case, Ex parte Quirin. That reliance is misplaced. President Roosevelt’s Order was expressly limited to ‘‘subjects, 

citizens or residents of any nation with whom we are at war.’’ We are not ‘‘at war’’

with any nation. Rather, we are fighting an international organization of religiously 

motivated criminals. In an attempt to destroy their networks, the Bush Order targets not nationals of an enemy nation, but rather, in George Will’s words, ‘‘alien terrorists held in the United States.’’

Furthermore, the saboteurs in that case, as to whose guilt there was no doubt at 

all because of the defection of two of their number, were charged with violations of 

the ‘‘law of war’’ and, as noted above, the Bush order is far broader and much more 

indefinite than that. 

This order has already done much damage. Spain will not extradite the eight suspects in the September 11 hijacking whom it has arrested because they would face 

these military commissions, and it appears that other European Union members 

will do the same. 

Some 75 years ago Justice Louis D. Brandeis warned us against ‘‘men of zeal, 

well-meaning but without understanding.’’ We seem to have forgotten that.

f584

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

AL QAEDA SHOULD BE TRIED BEFORE THE WORLD

Cambridge, Mass.—On Tuesday President Bush signed an executive order allowing the government to try accused terrorists before military commissions rather 

than in federal court. No matter how tempting or expedient, trials by military commission will prove disastrous—to the war against terrorism, to the Constitution and 

to the rule of law. 

The—administration favors such trials because they will allow sensitive evidence 

to be presented in secret. The rules governing the conduct of military commissions 

would be drawn up by the Pentagon, without regard to the safeguards and guarantees provided by the Constitution. And because they are likely to be held abroad, 

the trials would present no domestic security risk and would undoubtedly elicit less 

coverage from the American media. 

But if the public relations war is as important as the military war, as our allies 

and the administration insist, such trials would give the enemy a victory of enormous proportions. President Mohammad Khatami of Iran denounced the Sept. 11 

attacks, but said he needed evidence that Osama bin Laden was responsible. Presenting evidence in secret will convince no one and will only fortify Mr. bin Laden’s 

propaganda. And military executions of convicted terrorists after such trials will create a new generation of martyrs. 

Imagine how this looks to the rest of the world: Timothy McVeigh killed 168 of 

his fellow citizens. Yet he was entitled to all the constitutional protections and safeguards of a federal criminal trial—held in the United States, in public. Now, when 

the defendants are foreigners, most likely Muslims, the administration of justice is 

left to an ad hoc military commission acting in secret. 

In a legal sense, too, such trials will hand the terrorists an important symbolic 

victory.Although the United States will claim that they are ‘‘nonprivileged combatants’’—that is, soldiers who have violated the laws of war—it would still be acknowledging them as combatants rather than common criminals. The trials will thus dignify terrorists as soldiers in Islam’s war against America. This is exactly the wrong 

message to send. Al Qaeda members are international outlaws, like pirates, slave 

traders or torturers. 

At a deeper level, such trials challenge our identity as a people. Military commissions have been used rarely in the past, principally to try spies caught behind 

enemy lines. Now we are proposing them as a long-term mechanism to achieve one 

of our principal war aims—finding and trying terrorists. But we are also, according 

to President Bush, fighting for the values embodied in our Constitution, against an 

enemy that would destroy our way of life. How then can we violate those values 

in the process? 

If we must depart from constitutional practices, then the United States should 

prosecute accused terrorists before an international tribunal. The United Nations 

war crimes tribunal for the former Yugoslavia, for example, tries cases before a 

panel of three judges, not a jury. It has developed numerous procedures for presenting key evidence in secret and protecting the identities of crucial witnesses. And 

when Slobodan Milosevic attempted to exploit the process and grandstand for a television audience, the chief judge shut him down. In addition, it would be easier politically for countries like Pakistan, Egypt or Jordan to extradite defendants to an 

international tribunal than to a secret court run by the United States military. 

The difference between military commissions and an international tribunal is the 

sanction and legitimacy of the global community. An international tribunal would 

demonstrate the depth of international solidarity against terrorism. 

Today we have the opportunity to devise common procedures among nations 

around the world, far beyond the West. President Bush has said repeatedly that we 

must bring terrorists to justice. Trial by military commission is not justice—at least 

not justice as we understand it and preach it to the world. Justice is on our side. 

We should not forsake it. 

Anne-Marie Slaughter is professor of international law at Harvard Law School.

f585

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

Justice 

George W. Bush has announced his intention to stand firm in the face of mounting criticism of his plan to try terrorists in military commissions. But the real question is whether these tribunals will hamper the international judicial cooperation 

so vital to the pursuit of terrorists over the longer term. Spanish judge Baltasar 

Garzon has already refused to extradite eight important terrorist suspects apprehended in Spain. Spanish Prime Minister Jose Maria Aznar saved national face by 

announcing that ‘‘if and when the United States requests . extradition’’ his government ‘‘will study the issue,’’ but senior EU officials still maintain that judges across 

Europe will balk. Further, Egypt has now voiced its displeasure at the U.S. refusal 

even to provide the names of detained Eygptian citizens. 

What is really at issue is the content of the actual rules that will govern the proceedings before military commissions, rules now being written by the Justice Department and the Pentagon. These rules may well be more liberal than the initial 

Executive Order. White House Counsel Alberto Gonzales has already announced 

that habeas corpus challenges to the tribunals’ jurisdiction will be available in federal court for ‘‘anyone arrested, detained or tried in the United States,’’ notwithstanding the provision in the order itself denying defendants access to any national, 

foreign, or international tribunal. 

Secretary Rumsfeld said yesterday that the Administration is engaging in a dialogue with noted scholars and experts on how to make these rules as palatable as 

possible. He could start by talking to the Senate Judiciary Committee and the State 

Department, both of which are likely to be more sensitive to domestic and international concerns. For its part, the Senate Judiciary Committee can use its current 

hearings to identify a number of concrete changes that would greatly enhance the 

acceptability of the Administration’s plan, at least regarding the trial of suspects apprehended and tried outside the United States. 

The right to a free and fair trial is recognized by all major political, social, religious, and cultural systems. The Universal Declaration of Human Rights states that 

everyone ‘‘is entitled in full equality to a fair and public hearing by an independent 

and impartial tribunal.’’ Even in times of war, Common Article 3 of the Geneva Conventions requires that anyone accused of a crime be afforded ‘‘all the judicial guarantees which are recognized as indispensable by civilized peoples.’’ The International Covenant on Civil and Political Rights, the Inter-American Convention on 

Human Rights, the Cairo Declaration on Human Rights in Islam, the African Charter on Human and People’s Rights and the European Human Rights Convention all 

contain similar guarantees of fair judicial process. 

What emerges from these numerous international instruments are five core principles of international due process: the presumption of innocence; the right to a 

speedy trial; the right to counsel of choice; the right to confront evidence and witnesses in a public forum; and the right to an appeal. What the Administration may 

not realize is that these standards are more flexible than the specific strictures of 

our own Constitution. They allow considerable latitude in tailoring a judicial process 

to meet the challenges of pursuing global criminals. 

Even tribunals created in extraordinary circumstances have complied with these 

five principles. Military commissions used in the Civil War explicitly provided for 

appellate review. The Nuremberg Tribunal allowed defendants to choose their counsel from a list of qualified attorneys. The Diplock Courts created by the UK in the 

1970s to deal with terrorism in Northern Ireland embraced all five principles. The 

European Court of Human Rights upheld the right to a speedy trial by reversing 

the British Government when defendants were indefinitely detained. The ad hoc 

criminal tribunals for Rwanda and Yugoslavia have guaranteed the right to confront 

even the most sensitive evidence by redacting references to intelligence sources and 

methods and by providing the public with a transcript of proceedings when the 

courtroom must be closed to protect the anonymity of witnesses. And all these tribunals have started from a presumption of innocence. 

President Bush’s Order requires relatively little modification and elaboration to 

meet the international standards applied by these tribunals. The following commitments would have to be made explicit.

• All detainees must be presumed innocent until proven guilty. However, 

the-order need not specify the precise standard of proof. 

• All those arrested or detained shall be brought to trial within a specific 

time period. 

586

• All accused are entitled to qualified counsel of their own choosing, either 

from a specified list or after approval by a judge. 

• Evidence will be made available to both prosecution and defense after redaction to protect classified sources and methods. Proceedings in which 

such evidence is presented will be open to the public or published in full 

soon after the fact. 

• All convicted defendants can appeal their convictions. However, such appeal could be to a special appellate tribunal established for this purpose. 

Appellate judges, who are more removed from potentially classified evidence presented at trial, could include civilians and even international jurists in certain circumstances.

Military commissions can go wrong. Special courts restricting due process have 

largely failed in Egypt and Israel. The State Department has officially criticized the 

use of military commissions to try civilians in Burma, China, Columbia, Egypt, Malaysia, Nigeria, Peru, Russia, and the Sudan. The problems cited in each of these 

cases were not the use of military commissions per se, but rather the failure to comply with the five core principles of free and fair trials. 

The costs of complying with standards of international due process are not high. 

The benefits are enormous, both in terms of encouraging cooperation from our coalition partners and upholding our own basic values. Working within the framework 

of the Military Order, the Administration should publicly commit itself to the five 

core precepts of basic justice. 

Anne-Marie Slaughter is professor of international law at Harvard Law School 

and President-elect of the American Society of International Law. William BurkeWhite is third year student at Harvard Law School.

Editorial in the Wall Street Journal, December 4, 2001

fTERRORISTS ON TRIAL—II 

Supreme Court Justice Antonin Scalia didn’t break any rule of judicial decorum 

when he told the Associated Press recently that ‘‘Nobody wants to capture Osama 

bin Laden and have him tried by Judge Ito for two years.’’ But his quip does help 

cut through the hysteria that has arisen about the issue of military tribunals. 

Justice Scalia was careful not to voice an opinion on tribunals, the constitutionality of which he may have to decide once President Bush puts the first captured 

terrorist on trial. But his comment grasps the essence of the White House argument 

that our regular criminal justice system isn’t up to the job of trying terrorists. As 

Senate Democrats prepare to roast Attorney General Ashcroft this week, we thought 

you might like to know about the civilian system’s recent and unhappy record in 

such cases. 

Three recent cases have pertained to the first attack on the World Trade Center 

and one followed the bombing of the U.S. embassies in Africa. The good news is that 

the trials resulted in convictions; the bad news is they were protracted, expensive 

and dangerous to the participants. Worse, we’ll never know what the cost of those 

convictions was to intelligence sources and methods. 

This issue of secrecy looms largest, for both confidential and even nonclassified 

information. The first World Trade Center trial included lengthy testimony about 

the structure and stability of the Twin Towers; there’s little doubt this data helped 

Mohamed Atta plan his horrific flights into those buildings. 

In the embassy-bombing trial, Government Exhibit #1677–T was al Qaeda’s terror 

manual. This how-to handbook was chock-a-block with counter-surveillance measures, encryption methods, storing explosives and other tricks of the terrorist trade. 

It offered some business-school-style case studies in what went wrong in failed assassinations, and provided a list of escape routes. 

By entering the manual into evidence, the U.S. was telling al Qaeda that it knew 

its operating procedures and inviting it to change course. This was bad enough during peacetime, but in the middle of a war against terrorism it’s akin to disclosing 

troop movements. Military tribunals, which could close the proceedings when sensitive information is discussed, would make sure this mistake isn’t repeated. 

Speedy justice is also not a hallmark of civilian courts. The first World Trade Center trial took six months in 1993–94. A second lasted four months in 1997. A third 

trial—that of Omar Abdel-Rahman, the blind sheik—took eight months in 1995. 

And the embassy-bombing trial last spring lasted three months, with sentencing 

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scheduled to take place on September 12 in the federal courthouse a few blocks 

north of the World Trade Center. 

Which brings us to the fact that all of these trials were held under heavy security 

and at great risk to the participants. Federal courthouses are heavily trafficked public buildings in dense urban areas, and thus difficult to protect. Effective security 

requires more than installing metal detectors or closing off adjacent streets. 

A military base is the safest venue for terrorist trials, but even then security isn’t 

a simple matter. It took a year to prepare Camp Zeist in the Netherlands for the 

trial of those accused of bringing down Pan Am Flight 103. The Indian Ocean island 

of Diego Garcia, which has the double virtue of being home to a British military 

base and located in Afghanistan’s neighborhood, could make sense for the U.S. tribunals. Geraldo would be able to fly in and out easily. 

The usual rule in civilian terrorist trials is anonymity for the jurors. But it’s hard 

to believe that jurors are going to consider that adequate protection after Sept. 11. 

Judges are even more at risk; two federal judges in New York remain under tight 

security to this day, long after the end of their terror trials. 

The larger point here is that military tribunals aren’t some Big Brother evasion 

past the normal rules of justice. They are a common sense, and historically well established, way to cope with the unusual demands of a war against terrorism. As recently as 1996, the Clinton Administration rejected Sudan’s offer to turn over 

Osama bin Laden because it didn’t think it had enough evidence to convict him in 

a criminal court. A military tribunal would certainly have come in handy then. Terrorists who would kill thousands of American civilians aren’t ordinary criminal suspects and shouldn’t be treated as such. 

The Defense Department is working out rules and procedures for the tribunals, 

but we already know some reassuring details. The trials will be mostly open to the 

media, some civilian judges might well take part and suspects will have the right 

to counsel. They will not, thankfully, have the right to a two-year trial by Judge 

Ito.

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

f2001

END-RUNNING THE BILL OF RIGHTS

AFTER THE—attacks of Sept. 11, many predicted that the demands of domestic security would eventually clash with traditional American reverence for civil liberties. 

Few predicted that the clash would come so soon and so starkly, or that the government would come down so decisively on the anti-liberty side as would be permitted 

under President Bush’s new executive order on military justice. The order allows the 

president to order a trial in a military court for any non-citizen he designates, without a right of appeal to the courts or the protection of the Bill of Rights. 

We understand the temptation to jettison civilian justice and the shields against 

excessive government power that this country has nurtured for more than two centuries. The United States is, as Attorney General John Ashcroft said, at war, and 

with an implacable foe. There are potential terrorists, likely living in this country, 

who would do Americans great harm if they could—greater even than what their 

brethren accomplished at the World Trade Center, the Pentagon and the field in 

Pennsylvania. We can imagine cases in which the government might take custody 

of such a person, too dangerous to be released or deported, against whom the evidence came from sources too sensitive to reveal in open court, or was insufficient 

to win conviction in a normal court. We can also imagine cases in which fighters 

captured overseas might best be tried in military courts. But the potential damage 

is so great, to U.S. credibility abroad as well as U.S. liberty at home, that such 

courts should be viewed as an absolutely last resort, particularly in domestic cases. 

Instead, Mr. Bush has authorized military justice as an option for the government 

in a far wider array of cases than could ever be necessary. Any non-citizen whom 

the president deems to be a member of al Qaeda, or to be engaged in international 

terrorism of virtually any kind, or even to be harboring such people, can be detained 

indefinitely under his order and tried. The trials could take place using largely secret evidence. Depending solely on how the Defense Department further refines the 

rules, the military officers conducting the trials might insist on proof of guilt beyond 

a reasonable doubt, or might use some far lesser standard. The accused can be convicted without a unanimous verdict but with a two-thirds majority. Those found 

guilty would have no appeal to any court; and if found guilty, they could be exeVerDate Feb 1 2002 09:04 Nov 15, 2002 Jkt 081998 PO 00000 Frm 00223 Fmt 6621 Sfmt 6621 C:\HEARINGS\81998.1 SJUD4 PsN: CMORC
588

cuted. Such a process is only a hair’s breadth from a policy of summary justice. The 

potential to imprison or execute many innocent people is large, the chances that 

such mistakes would become known much smaller. Mr. Bush is claiming for himself 

the authority to unilaterally exempt a class of people accused of particular crimes 

from the protections of the Constitution. In this as in other recent balancing acts 

between law enforcement and liberty—the roundup without accounting of more than 

1,000 people, the authorization of government eavesdropping on conversations between imprisoned clients and their lawyers—it seems to us the president is not 

being well advised. 

When Americans accused of terrorism are tried in secret courts by hooded judges 

in Peru or other nations, the U.S. government rightly objects. To authorize comparable trials in this country will erase any legitimacy of such objections. Worse, 

it will erode throughout the world the image of America as a place where certain 

freedoms cannot be compromised—freedoms that ultimately provide the most basic 

justification for this country to stake its claim to lead the world and wage the war 

on terrorism. And worse in turn than the blow to the U.S. image abroad will be the 

potentially irreversible injury at home if Mr. Bush proceeds, as his order would 

allow, to undermine the rule of law.

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

fTHE CASE FOR MILITARY TRIBUNALS

U.S. Marines may have to burrow down an Afghan cave to smoke out the leadership of al Qaeda. It would be ludicrous to ask that they pause in the dark to pull 

an Afghan-language Miranda card from their kit bag. This is war, not a criminal 

case. 

The president’s executive order, providing for the detention and possible trial of 

terrorists in military courts, recognizes this. But some critics continue to argue that 

trials are better held in a federal district court, or in an ad hoc international criminal tribunal. Others have worried that the initial jurisdictional order does not fully 

specify the rules of trial procedure and evidence that would await prisoners. Yet 

others are concerned that Congress was not asked for authorizing legislation. These 

criticisms, though made in good faith, reflect a misunderstanding of how the law 

of war is enforced, as well as a dangerous naivete about the threat we face. 

The detention of combatants is a traditional prerogative of war. We have all seen 

movies about captured soldiers in World War II. After surrender or capture, a soldier can be parked for the rest of the war, in humane conditions, to prevent him 

from returning to the fight. His detention does not depend on being charged with 

a crime. Though most al Qaeda members do not rise even to the level of POWs—

they have trampled on the qualifying rules of wearing distinctive insignia and observing the laws of war—they can be detained by the same authority for the duration of the conflict. 

Military courts are the traditional venue for enforcing violations of the law of war. 

The Sept. 11 murder of 4,000 civilians was an act of war, as recognized by the U.N. 

Security Council in two resolutions endorsing America’s right to use force in selfdefense. Osama bin Laden and his airborne henchmen disregarded two fundamental 

principles of morality and law in war—never deliberately attack civilians, and never 

seek disproportionate damage to civilians in pursuit of another objective. The choice 

to carry out the attacks during the morning rush hour reveals this to be a war crime 

of historic magnitude. 

Why not try al Qaeda members in Article III federal courts, with a civilian judge 

and a jury? Federal judges have never been involved in the detention of POWs or 

unprivileged combatants. Only in 1996 did federal courts gain limited statutory jurisdiction to hear war crimes matters, and no federal court has ever heard such a 

case. 

Moreover, just consider the logistics. It is hard to imagine assigning three carloads of federal marshals, rotated every two weeks, to protect each juror for the rest 

of his life. An al Qaeda member trained in surveillance can easily follow jurors 

home, even when their names are kept anonymous. Perhaps it is only coincidence 

that the World Trade Center towers toppled the day before al Qaeda defendants 

were due to be sentenced for the earlier bombings of East Africa embassies—in a 

federal courthouse in lower Manhattan six blocks away. But certainly before Sept. 

11 no one imagined the gargantuan appetite for violence and revenge that bin 

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Laden has since exhibited. Endangering America’s cities with a repeat performance 

is a foolish act. 

If there are a sizeable number of al Qaeda captures, the sheer volume will also 

be disabling. At a rate of (at most) 12 defendants per trial, trying 700 al Qaeda 

members would take upwards of 50 judges, sequestered in numerous courthouses 

around the country. 

In federal court, as well, there are severe limitations on what evidence can be 

heard by a jury. Hearsay statements of probative value, admissible in military commissions, European criminal courts and international courts, cannot be considered 

in a trial by jury. Historically, Anglo-American juries were thought incapable of 

weighing out-of-court statements, and the Supreme Court attached many of these 

jury rules to the Constitution. So bin Laden’s telephone call to his mother, telling 

her that ‘‘something big’’ was imminent, could not be entered into evidence if the 

source of information was his mother’s best friend. In a terrorist trial, there are few 

eyewitnesses willing to testify, because conspiracy cells are compartmentalized, and 

witnesses fear revenge. 

There is also the problem of publishing information to the world, and to al Qaeda, 

through an open trial record. As Churchill said, your enemy shouldn’t know how you 

have penetrated his operations. The 1980 Classified Information Procedures Act 

helped to handle classified secrets at trial, but doesn’t permit closing the trial or 

the protection of equally sensitive unclassified operational information. 

An international tribunal is even less practical. The ad hoc criminal tribunals created for Yugoslavia and Rwanda by the U.N. Security Council have not enjoyed the 

confidence of Western powers in obtaining intelligence intercepts for use at trial. 

Americans could not expect to fill the majority of slots in an ad hoc tribunal, and 

a trial chamber of three to five judges might have no Americans at all. Moreover, 

the tribunal for Yugoslavia has operated at a snail’s pace, trying only 31 defendants 

in eight years, at a cost of $400 million. 

It is even more fanciful to propose that a largely Muslim court should be delegated to try bin Laden and company. Arab and Muslim states will fear the reaction 

of their own local militants. And Israel might properly wonder why it could not also 

serve on such an international court, since bin Laden’s fatwa called for the murder 

of Jews and Americans. No Arab state would participate, of course, if an Israeli 

judge served. This does not preclude offering into evidence, at a military tribunal, 

the works of international law by Muslim jurists that show that the standards of 

protecting innocents are universal. 

Congress will want to consult on the nature of the military tribunals established 

by President Bush. Congress’s input will be useful to the administration in crafting 

rules of procedure and evidence, as well as in thinking about added safeguards for 

alleged terrorists discovered within the U.S. Civilian judges can serve on military 

tribunals (civilians served at Nuremberg), and few hearings may be closed, except 

for sensitive portions. Habeas corpus review remains available for aliens arrested 

in the U.S. 

But it is also plain that Congress long ago agreed to the president’s power to convene military commissions (under U.S. Code, Title 10, Section 821). In addition, the 

president has inherent constitutional power as commander-in-chief to convene such 

tribunals, an argument acknowledged by Chief Justice Harlan Fiske Stone in a 1942 

opinion. (Stone, writing for a unanimous Supreme Court, declined to set aside the 

military trial and execution of German saboteurs who had entered the U.S. to destroy war plants.) The president is also authorized by statute to write rules of procedure and proof for military commissions, and to decide whether or not it is ‘‘practicable’’ to adopt the ordinary rules of common law and evidence. 

The thought of printing stationery for the ‘‘United States district court for the district of Afghanistan’’ sounds rather absurd. And for good reason. This danger is too 

serious to be left to the civilian courts. 

Ms. Wedgwood, a former federal prosecutor, is a professor of international law at 

Yale and Johns Hopkins University. 

(See related letter: ‘‘Letters to the Editor: In War, Tribunals Make Perfect 

Sense’’—WSJ Dec. 10, 2001) 

INDEX REFERENCES

NEWS SUBJECT: Crime/Courts; Editorials and Columns; Commentary/Opinion; 

Law Enforcement; Law Enforcement; Military Action; Military Action; Special News 

Events; Public Policy & Regulatory Issues; Politics; Wall Street Journal; Editorial 

Page; English language content; Domestic Politics; Political/General News; Crime; 

Terrorism; General News; Content Types; Risk News (GCRIM EDC NEDC LEN 

590

GNOME MLT GVIO NWS PBP PLT WSJ EDI ENGL GPOL GOAT CRM GTERR 

GEN NCAT GRISK) 

MARKET SECTOR: Newswire End Code (NND) 

GOVERNMENT: Congress; Defense Department; Supreme Court; U.S. Government 

Agencies (CNG DEF SUP USG) 

REGION: Afghanistan; Afghanistan; Far East; Far East Other; North America; 

United States; United States; Central Asian Countries; Asian Countries; North 

American Countries (AFG AFGH FE FEO NME US USA CASIAZ ASIAZ NAMZ)

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

fTHE INTERVIEWS

DEADLINE IS EXTENDED IN QUESTIONING OF FOREIGNERS

DETROIT, Dec. 3—Law enforcement officials here extended the deadline today for 

young Middle Eastern men to respond to letters sent last week requesting interviews about the Sept. 11 terrorist attacks, after only about 185 of the 550 people 

wanted for questioning called to schedule appointments. 

The extension, from Tuesday to next Monday, came as Attorney General John 

Ashcroft, appearing here in the nation’s largest Arab-American community, defended the Justice Department’s interview plan and invited prominent local Arabs 

and Muslims to sit in on the meetings. 

Two people who attended a half doxen interviews today said the conversations 

were professional, non-threatening and surprisingly short. Noel Saleh, an immigration lawyer, and Imad Hamad, Midwest director of the American-Arab Anti-Discrimination Committee, said the young men, a handful of the 5,000 temporary visa 

holders wanted for questioning nationwide, answered ‘‘yes’’ or ‘‘no’’ as investigators 

marked notes on a four-page Justice Department questionnaire. 

‘‘They asked about Sept. 11, if they were aware of people who acted differently 

or if they were aware of people who were happy or were celebrating what happened 

on Sept. 11,’’ Mr. Hamad said. ‘‘They asked if they are aware of any terrorist group 

or if anybody is planning anything. They asked if they’d ever been part of an armed 

conflict in their own country, the form of a policeman.’’

At a news conference this morning, after a Sunday night meeting with five leaders of the local ArabAmerican community, Mr. Ashcroft angrily denied that his department was engaged in racial profiling and praised the leaders as ‘‘part of the solution.’’

‘‘I find the American-Arab community to be a very helpful community,’’ he said. 

‘‘The people who hijacked the planes on Sept. 11 were not representative of the 

AmericanArab community.’’

Immigration lawyers and community leaders said they were pleased by Mr. 

Ashcroft’s reassurances and by the tenor of the interviews so far, but still skeptical 

of the vast canvass and the continued detention of hundreds of people swept up in 

the investigation. The men that the Justice Department is seeking to interview 

range in age from 18 to 33 and have come to the United States since Jan. i, 2000, 

on student, business or tourist visas from countries suspected of links to terrorism. 

‘‘Sometimes there are gaps between what people say and what they do,’’ said 

Yahya Mossa Basha, president of the American Muslim Council, who attended the 

meeting with Mr. Ashcroft on Sunday night. ‘‘Those gaps have to be covered in order 

for people to be satisfied.’’

ASHCROFT FINDS HIMSELF ON THE DEFENSIVE. 

Mr. Saleh said Mr. Ashcroft’s meeting with community leaders was an empty gesture. ‘‘The F.B.I. met with Martin Luther King numerous times but that didn’t stop 

them from violating his civil rights,’’ he said. 

Osama Sibiani, editor of The Arab American News, a national weekly based in 

nearby Dearborn that published an editorial last week encouraging people to cooperate with the interviews, said he told Mr. Ashcroft that he resented any comparison 

of the treatment of Arab-Americans today to that of Japanese- and German-Americans during World War II because ‘‘the Arab world has not declared war on the 

United States.’’

It remains unclear what will happen to people here who do not respond to the 

letters, which law enforcement officials sent, rather than sending investigators out 

knocking on doors. Robert Cares, an assistant United States attorney who heads the 

591

Detroit office’s antiterrorism task force , said today that he would not pursue a conversation with the one person who responded to the letter but declined to be interviewed. Mr. Cares said nine federal agencies and 50 local police departments were 

involved in the interviews in eastern Michigan. 

After sitting in as an Internal Revenue Service agent and Michigan State Police 

officer talked to three students from Henry Ford Community College and Wayne 

State University, Mr. Saleh said the questions were not ‘‘severe or adversarial’’ but 

that his clients were still nervous during the half-hour talks. ‘‘They all said, ‘Since 

we got the letter we haven’t been able to concentrate on study,’’’ he said. 

Mr. Hamad, who attended the Sunday night meeting w3ih Mr. Ashcroft and today 

took him up on his offer to sit in on interviews, said the three men he watched being 

questioned a Jordanian student, a Lebanese student and a Lebanese engineer who 

has a green card—were asked to show their passports but not questioned about 

their visa status. The F.B.I. agent conducting the interviews, which lasted 10 to 15 

minutes, asked if they had visited Afghanistan, whether they had been the subject 

of harassment because of their ethnicity and what they thought of airport security. 

‘‘It was very straightforward questions with straightforward answers and the 

agent did not even elaborate further,’’ Mr. Hamad said. ‘‘He did not revisit the same 

question and try to get any answer beyond the ‘no’ answer that was given.’’

In Ann Arbor, Mich., today, Police Chief Daniel Oates and federal law enforcement officials met with eight Muslim leaders to discuss plans for interviews with 

about 80 young men there; including students at the University of Michigan, whose 

officers have declined to participate in the project.

Article by Byron York on National Review Online, NR White House 

Correspondent, December 3, 2001

fDEMS CAVE ON TRIBUNALS? 

A STAR WITNESS MAKES THE CASE FAR THE MILITARY COURTS. 

While many in Congress and the press wait for Thursday’s showdown between 

Senate Judiciary Committee chairman Patrick Leahy and Attorney General John 

Ashcroft over the Bush administration’s antiterrorism measures, a key part of the 

Democrats’ strategy will be previewed in another hearing, this one scheduled for 

Tuesday morning. 

The session will focus solely on the issue of using military tribunals to try foreign 

terrorist suspects. The commissions, authorized by President Bush in a November 

13 military order, dominated discussion at last week’s committee questioning of top 

Justice Department official Michael Chertoff. 

Tuesday’s session will be chaired by New York senator Charles Schumer (it is one 

of four Judiciary Committee hearings this week, and Leahy apparently does not 

have time to chair them all). The witness list includes Democratic perennial Laurence Tribe, a Harvard Law School professor who is expected to criticize the president’s order. 

But anyone expecting a full-scale attack on Bush’s plan will likely be disappointed. Rather, it appears that Democrats have conceded much of the president’s 

position and will only ask to be consulted more as the rules for tribunals are written. 

Much of the argument will focus on points made by Tribe in a recent article, 

‘‘Trial by Fury,’’ in The New Republic magazine. In it, Tribe begins by arguing that 

the military tribunal order ‘‘goes too far’’ in infringing civil liberties. But in the end, 

Tribe makes a convincing case that the tribunals are not only constitutional but necessary. 

Tribe argues that Bush may have exceeded his authority by establishing tribunals 

without the approval of Congress. While lawmakers did pass a seemingly comprehensive use-of-force authorization giving the president wide discretion to conduct 

the war on terrorism, Tribe says the authorization lacks the ‘‘ritualistic solemnity 

of a declaration of war’’ and therefore ‘‘does not justify the same domestic deprivations that a formal declaration of war might.’’ He then writes that the president’s 

tribunal order is so flawed that it could theoretically lead to absurd results - suggesting that Bush might order the execution of someone acquitted by a tribunal, or 

that Ashcroft might use a tribunal to try someone accused of assisting suicides in 

Oregon. 

592

‘‘But just because the order is flawed doesn’t mean it can’t be mended,’’ Tribe continues. Normally, he says, one might look to the Supreme Court for assistance, but 

Tribe argues that the justices would be little more than a ‘‘rubber stamp’’ for Bush’s 

action. Tribe cites the majority opinion in Bush v. Gore, as well as the Court’s approval of tribunals in the past, as evidence that the justices would be insufficiently 

critical. Tribe also hints that the Court might be vulnerable to intimidation by the 

president; he writes that there is evidence that ‘‘some nasty behind-the-scenes armtwisting by the executive’’ was behind the Court’s unanimous approval of Franklin 

Roosevelt’s decision to try eight Nazi spies by tribunal in 1942. 

With the Supreme Court on the sidelines, Tribe writes that Congress must take 

up the task of correcting the president’s actions. Congress, Tribe argues, is the only 

body with the power to investigate the administration’s detention of terrorist suspects and witnesses, as well as its ‘‘racial profiling’’ of Middle Eastern immigrants 

and ‘‘the array of other apparent incursions on traditional liberties and privileges 

...that Attorney General Ashcroft has instituted.’’

At that point, however, Tribe makes an abrupt about-face. Addressing the ‘‘fundamental question of whether the core of the executive order, its gratuitous branches 

pruned, is consistent with the Constitution,’’ he answers: ‘‘I think it may well be.’’

‘‘In wartime,’’ Tribe continues, ‘‘’due process of law,’ both linguistically and historically, permits trying unlawful combatants for violation of the laws of war, without 

a jury or many of the other safeguards of the Bill of Rights,’’ provided the tribunals 

are impartial. In addition, Tribe concedes that there is nothing to suggest that civilian juries in wartime will be any more fair than military tribunals. He also admits 

an uneasiness about lawyers in civilian courts using procedural arguments to free 

suspects who ‘‘belong to terrorist cells that slaughter innocent civilians.’’ And lastly, 

Tribe worries that civilian trials would ‘‘grant an extended pulpit to an accused bent 

on claiming martyrdom and capable of stirring others to further acts of international terror.’’

Even his criticism of tribunals doesn’t really amount to all that much, Tribe concludes. ‘‘This is not to suggest that those tribunals, at their core, offend any fundamental constitutional precept,’’ he writes. 

Tribe’s argument is likely to get a friendly hearing from temporary chairman 

Schumer. At last week’s hearing, he said, ‘‘I haven’t made up my mind’’ about tribunals. ‘‘I think there is a need for secrecy,’’ Schumer continued, ‘‘I think those who 

say we should just have a regular trial, as if it was someone who held up a candy 

store - that doesn’t make much sense.’’ It might turn out that the showdown over 

tribunals will be considerably less than advertised.

Æ