120,000 Japanese Americans and thousands of German and Italian Americans. We later came to regret those acts.

I do not suggest that what is now going on rivals that deplorable action taken in the name of national security, but I do think we need to learn a lesson from this history to question our government when it appears to be overreaching. Such questions are not unpatriotic and they should not be viewed as an inconvenience by the executive branch. They are a crucial tool for Congress to play its constitutional role in protecting the great heritage of this country and the rule of law.

[The prepared statement of Senator Feingold follows:]

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN

Welcome to the third of four hearings on DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism. This hearing will focus on the issue of individuals detained in connection with the September 11th attacks investigation. This hearing will explore the importance of the Attorney General providing a full accounting of who is being detained and why, as well as other basic information about the status of individuals detained since September 11th. We will also consider the Department of Justice's plan to question 5,000 individuals of Arab and Muslim backgrounds in connection with the investigation.

The terrorists struck the heart of our nation's financial capitol when they struck New York City and took the lives of thousands of Americans. In the shadow of where the World Trade Center once stood is the Statue of Liberty, standing tall and proud, with a torch raised to the skies. She shines her light on a city and a nation struggling to cope with this tragedy and working to prevent any such horrific act from ever happening again.

Most important, Lady Liberty is a reminder of why Americans, and immigrants, who like my forefathers and those of probably everyone in this room, arrived on our shores desiring to be Americans one day, love our nation, and are proud to be a part of it. Her beacon at the golden door to America is a beacon of freedom, a beacon of hope, and a beacon of justice.

I fear that America's beacon of freedom and justice is threatened, as we face almost daily revelations of extraordinary steps by the Justice Department that snub the rule of law and threaten to erode fundamental constitutional rights.

As my colleague Senator Kennedy eloquently stated last week, no Senator and no American has a monopoly on wanting to bring the perpetrators of the September 11th attacks to justice and doing all we can to prevent future acts of terrorism and the loss of American lives. I fully support our law enforcement officials in their tireless efforts to leave no stone unturned as they strive to protect our nation from future attacks.

But as we move forward in our fight against terrorism, Congress, especially this Committee, has a responsibility to ensure that the constitutional foundations of our nation are not eroded. The beacon of freedom must continue to shine on our nation. During the course of the investigation of the September 11 attacks, the Justice Department has detained over 1,100 individuals. The Justice Department recently began releasing some information about the people who have been detained on federal criminal charges or immigration violations. But we still do not have a full picture of who is being detained and why. And there are reports that detainees have been denied their fundamental right to due process of law, including access to counsel, and have suffered serious bodily injury. We simply cannot tell if those cases are aberrations or an indication of systemic problems, if the Justice Department will not release further information about those being held in custody.

The Attorney General has repeatedly and strongly asserted that he is acting with constitutional restraint. But the Department of Justice has a responsibility to release sufficient information about the investigation and the detainees to allow Congress and the American people to decide whether the Department has acted appropriately and consistent with the Constitution.

Within a week of September 11th, the Department began releasing information on the numbers of people who have been detained as part of the investigation. On October 31st of this year, I, along with Chairman Leahy, Senator Kennedy and Representatives Conyers, Nadler, Scott, and Jackson-Lee, sent a letter to the Attorney General requesting information about the detainees. We wanted to know who is

being detained and why; the basis for continuing to hold individuals who have been cleared of any connection to terrorism; and the identity and contact information for lawyers representing detainees. We also wanted information regarding the government's efforts to seal proceedings and its legal justification for doing so.

In early November, the Department announced it would no longer release comprehensive tallies of the number of individuals detained in connection with the September 11 investigation and that it would limit its counts to those held on federal criminal or immigration violations. Thus, it would no longer keep track of those held on state or local charges, nor would it indicate how many people have been released after being detained.

Just before Thanksgiving, the Department provided copies of the complaints or indictments for about 46 people held on federal criminal charges. It also provided similar information on about 49 people held on immigration violations, but redacted their identities. Last week, the Attorney General announced the number and identities of all persons held on federal criminal charges and the number, but not the identities, of persons held on immigration charges. The total number of detainees is roughly 600 individuals. But the Department continues to refuse to identify the 548 persons held for immigration violations, or provide even the number of material witnesses, or the number and identities of persons held on state or local charges. I am not satisfied with this response but we now know a lot more about the detainees than we knew at the end of October. This illustrates the crucial role of congressional oversight as a check on the executive branch.

The Department has cited a number of reasons for its refusal to provide additional information. Very troubling is the Department's assertion that those being held for immigration violations have violated the law and therefore "do not belong in the country." But without full information about who is being detained and why, we cannot accept blindly an assertion that each detainee does not deserve to be in the country. Do all of these immigration violations merit detention, without bond, and deportation? I doubt it, as some are very minor violations that under normal circumstances could be cleared up with a phone call. I hope that today's hearing will shed some light on this issue.

The Department also says it is protecting the privacy of the detainees by refusing to release their identities, and they are free to "self-identify" if they want. But as we will hear this afternoon, some of these individuals have been denied access to lawyers or family, for days or weeks at a time. So, it rings hollow to suggest that detainees are in a position to self-identify. My strong sense is that people in detention cannot just call the New York Times or this Committee if they want the public to know the circumstances of their cases. Our witnesses today should help us to assess whether the option of self-identification is a real option.

As this hearing will bring into focus, there are concerns that the Department's investigation has employed a clumsy, dragnet approach, which is increasingly proving to be offensive to the Arab and Muslim American communities and has come under criticism by a number of highly respected former FBI officials. I sincerely hope that the extraordinary effort to question immigrants from certain Arab and Muslim countries does not become counter-productive. In a rush to find terrorists, the Department appears to have disrupted the lives of hundreds of people, most of whom will prove to be wholly innocent of any connection to terrorism. Just as important, the trust of communities whose help is so crucial to preventing future attacks is being severely undermined.

We will hear today from Ali Al-Maqtari who was detained by federal officials in Tennessee for almost two months for a minor immigration violation that would not usually merit detention. We will also hear from his lawyer, Michael Boyle, who will discuss his experience in representing Mr. Al-Maqtari and the experience of his colleagues who are representing detainees. Following Mr. Boyle, we will hear from Mr. Goldstein, who will talk about the challenges he faced in his representation of Dr. Al Badr Al Hazmi, a radiology resident in San Antonio, Texas, who was detained following the September 11 attacks for nearly two weeks. Finally, Nadine Strossen, of the American Civil Liberties Union, will talk about why disclosing basic information about the status of the detainees is imperative and comment on the implications of questioning over 5,000 young men from Arab and Muslim countries.

This Friday, December 7th, our nation will mark the 60th anniversary of the bombing of Pearl Harbor, a day that President Roosevelt then said "would live in infamy." While our nation made great strides for mankind as a result of our victory in World War II, we also lost something of ourselves when we interned over 120,000 Japanese Americans and thousands of German and Italian Americans. We later came to regret those acts. I do not suggest that what is now going on rivals that deplorable action taken in the name of national security. But I do think we need to learn a lesson from this history to question our government when it appears to

be overreaching. Such questions are not unpatriotic and should not be viewed as an inconvenience by the Executive Branch. They are a crucial tool for Congress to play its constitutional role in protecting the great heritage of this country and the rule of law.

I will now turn to the ranking member, Senator Hatch, for his opening statement. Before I do, I want to thank the Chairman and Senator Kennedy for their leadership on this issue. I also want to thank Senator Hatch for his cooperation with Senator Leahy and myself in putting this hearing together.

Senator FEINGOLD. Whenever Senator Hatch arrives, perhaps after the break, we certainly will turn to him for his opening statement. I also want to thank the chairman and Senator Kennedy for their leadership on this issue and I, of course, want to thank Senator Hatch for his cooperation with Senator Leahy and myself in putting this hearing together.

I think this gives us an opportunity, then, to begin the first panel. I would ask Mr. Viet Dinh to join us.

Our first witness this afternoon is Mr. Viet Dinh, the Assistant Attorney General for Office of Legal Policy. The Justice Department asked that Mr. Dinh be permitted to testify at this hearing to give the Department's views. He has served as Assistant Attorney General since May 31 of this year. Prior to his government service, he was a professor of law at Georgetown University Law Center. He also served as special counsel to the Senate Whitewater Committee and to Senator Domenici during the impeachment trial of President Clinton.

I welcome you, sir, but I would ask that you limit your oral remarks, if you could, to five minutes so that we can make sure we have time to get to the next panel, in light of the problem with the vote interrupting us for some time. I appreciate your being here, and certainly, without objection, your full written statement will be placed in the record.

Mr. Dinh?

STATEMENT OF VIET D. DINH, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

Mr. DINH. Thank you very much, Senator, members of the Committee, and I thank you for putting the full statement in the record. Let me say first that it is not an inconvenience for me to be here. Rather, it is an honor, and thank you for having me here to answer the questions that the Committee has and continues to have and it is a great opportunity to answer some of these questions.

Your opening statement was quite moving, and so if I may, I will enter my written statement into the record and just very briefly touch upon the theme that you started with your opening statement about the nature of liberty in America. It is a question that has revolved in my mind since September 11, and more honestly, September 12, because September 11 was a day of numbness for

me.

But on September 12, I began to ask the question that I think most Americans have started asking themselves in this period also. That is, why? Why is it that these zealots are willing to give up their own lives in order to take the lives of thousands of innocent Americans and freedom-loving people around the world in that hor

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 na

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 en