We see Abraham Lincoln, who is our most revered President, move ahead and abolish habeas corpus at the time of the Civil War. We saw the Palmer Raids after World War II, and we have just gone through in more recent times the internment-the review of the internment of the Japanese in World War II.

So we have seen many times when the Congress has had hearings, saying we are facing this terror and we are taking steps, and then we have looked back in terms of American history about what this was about, and then we say we should have taken some time and really thought these steps through.

Now we have seen in more recent times where, under our chairman and Senator Hatch, we did the anti-terrorism bill, which was worked out in a bipartisan way. And we have the airport security after a period of time included in the anti-terrorism legislation, with money laundering, which is important, changes in the intelligence worked out in sort of a bipartisan way, which the American people really had a sense that they are participating in. And we are making, I think, important progress in bioterrorism and also in trying to deal with national security on the immigration. And we are working that out with the Congress, and we want to work with you. It is in that framework that I think many of these questions have come and have to be raised.

Now, on the issues of the military courts, I am a member of the Armed Services Committee and they gave us absolutely no indication. We are going to hear in about this Armed Services, so I don't want to put words in your mouth, but they had indicated that they stated unequivocally that Defense Department didn't request the authority. They didn't even appear to have been consulted. That was my impression. Secretary Rumsfeld will have a chance to answer. Maybe you would want to make a comment in just a minute on this.

There are concerns that many of us have about the military tribunals. Many of us, including bipartisans have been critical of these military tribunals. We have been most particularly critical when it has involved Americans in Peru. There we found an American being tried, and the State Department, Republicans and Democrats all talked about the failure of the military courts in Peru intentionally for not meeting internationally accepted standards of openness, fairness, and due process. We have stated that military courts in Egypt do not even ensure civilian defendants due process for an independent tribunal. We have stated that military tribunals in the Sudan do not provide procedural safeguards. We have criticized Burma, China, Colombia, Malaysia, Nigeria, Russia, and Turkey on similar grounds.

Yet now we are calling for the use of military tribunals. The concern is: Aren't we doing exactly what we have criticized other nations for doing? That would be one question. Let me mention just three items.

The second is with regard to the monitoring of the attorney-client communications. We have a process that is already available for those that are being imprisoned that is being utilized by the Justice Department and taking on the tough issues, for example, in the Mafia and drug kingpins. And we haven't had testimony that hasn't been effective, and we have a process and procedure. And

you have outlined a completely new kind of way of dealing with it. And we are asking ourselves, well, why don't you use the one that has been tried and tested and has been effective? We didn't know that that wasn't effective and wouldn't be just as effective in dealing with the kinds of challenges that you are facing today. It would have been interesting to know why you need the extra kind of dimension when many of us feel and continue to feel that the problems of the Mafia and drug kingpins enormously important.

The final point I just want to mention deals with the questioning of the Middle Eastern detainees and the massive questions whether it is racial profiling or not racial profiling. We have seen where our profiling technique failed us abysmally with regard to the airlines. We were profiling the wrong people. And that is-I won't take the time to do it.

And now we have the criticism of the former leaders in the FBI that have had solid records of achievement and accomplishment in dealing with the problems of terrorism, men and women of distinguished careers and who are tough on these issues who make the comments that they think are not only guts the values of our society but is also extremely ineffective.

Could you

Mr. CHERTOFF. Let me try, Senator.

Senator KENNEDY. Fine. Thank you. I know I have given you a lot, but

Mr. CHERTOFF. I have taken notes, and I will try to deal with each of these in turn. Let me not venture into the field of what the Department of Defense will tell the Armed Services Committee. I think that really falls within their jurisdiction.

On the issue of military commissions, I think we are aware of the fact that there has been criticism of some tribunals overseas. The fact of the matter is, whether you have a civilian tribunal or military tribunal, it is possible to have a fair one and it is possible to have an unfair one. It is not how you characterize it. It is how you implement it.

This country does have a long tradition of using military commissions, and using them fairly. I was surprised to learn, as I did reading in this area, that the Nuremberg tribunal in the post-war period in 1945 was actually a military commission that was constituted under the laws of war. And I don't think anybody doubts that that was a fair tribunal.

So the fact that you have a military commission does not betoken any unfairness. To the contrary, I think the President has made it abundantly clear he expects that the procedures that will be written will require a full and fair hearing that comports with reasonable standards of what fairness are. And I think the Department of Defense is going to produce a set of rules that comports with those standards the President has laid down.

So I don't think that we need to be concerned that we are doing something here that we are criticizing others for doing merely because we are using the well-accepted constitutional power to have a military commission. I think we have to have confidence that the process of developing the rules will, in fact, meet the President's directive.

Let me then turn briefly to the issue of attorney-client monitoring, and, again, it is not a matter which I think we undertake lightly, as indicated by the fact that there are only 16 inmates in the country who are even eligible for this. And to my knowledge, nobody has at this point been subjected to this new rule.

But we are dealing with individuals who are sworn enemies of the United States, and I can tell you from my personal experience doing organized crime cases, I know that we had problems in the past with organized crime figures conducting business from jail and even using lawyers to do that.

But in those instances, to be honest, the worst that happened was they continued to conduct criminal activity, but they didn't pose an actual threat to large numbers of Americans. As bad as the Mafia is and I take a back seat to no one in that respect-they weren't about the business of massacring hundreds of American citizens. So when we face that threat, the question is: Can we take steps as part of our management of the Federal prison system to make sure that people are not abusing their power and their right with respect to attorneys to communicate with the outside world, to initiate or encourage terrorist attacks that can cause massive damage to the United States?

What we have done, though, Senator, taking account of the law in this area, is to put in steps that afford the maximum amount of protection to the effective attorney-client relationship while allowing us in these rare instances to monitor in case there is information that relates to threats.

Nothing that comes through this monitoring process that is privileged is going to be retained under the regulation. Nothing that is privileged is going to be transmitted to anybody outside of the monitor and team, and it cannot be used by the prosecutors in the case. And we have experience using these kinds of devices in other situations, so I think we are confident we can make them work. And of course at the end of the day, if someone is prosecuted, a judge is going to have the opportunity to review whether in fact we have mishandled the information.

Let me finally turn to the issue of the interviews of detainees. Let me begin by saying, Senator, this is the least intrusive type of investigative technique that one can imagine. This is not rousting people. This is not detaining people. This is not arresting people. This is approaching people and asking them if they will respond to questions. So there is a minimal intrusion involved here.

We have emphatically rejected ethnic profiling. What we have looked to are characteristics like country of issuance of passport, where someone has traveled, the manner in which they have entered, the kind of visa they have come in on, and we have refined it based upon our experience gathered over the last several years in dealing with terrorists. And one measure of how precisely we have wielded the scalpel is the fact that we are talking about 5,000 people out of millions of people who come in and out of the country every year. So we have been careful in using this technique, and we have also been careful to make this a voluntary process.

Finally, I did read the article in the "Washington Post", and let me address it by saying this. I do not know where the people who were interviewed, how they get an understanding of what we are

doing. But I can make it clear that we are continuing to use the traditional techniques of investigation including long-term undercover operations, wiretapping, everything that we have been able to use in the past that has produced results. But we have also decided to use additional techniques, and one of the things we have done is we have imposed upon ourselves the discipline of asking: Is this investigation yielding fruit, or do we need to take the case down and now try to bring charges against somebody?

Again, my experience in the past is that sometimes these undercover operations or long-term wiretaps languish as the investigators wait for manna to drop from heaven that is going to be the smoking gun. We have to be disciplined enough to recognize there is a cost involved in protracting investigations, and we have to be disciplined enough to pull the trigger when the time has come to bring the case down. So that is what we are doing, we are using the old techniques, but we are using new techniques too. And we are not foreclosing things that have worked, but we are, again, creating the broadest range of options in being effective in fighting terrorism.

Senator KENNEDY. My time is up. Thank you.

[The prepared statement of Senator Kennedy follows:]

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF

MASSACHUSETTS

Two months ago, the United States was attacked by terrorists who sought to disrupt our government and our way of life. They have failed. Americans today are more united than ever in our commitment to win the war on terrorism and protect the country for the future. An essential part of meeting this challenge is protecting the ideals that America stands for here at home and around the world.

Soon after the vicious attacks of September 11, Congress approved strong bipartisan legislation authorizing the use of force against the terrorists and those who harbor them. Congress also quickly enacted legislation to provide aid to victims and their families, and to rebuild Lower Manhattan. We enacted airport security legislation, and an antiterrorism bill that gives law enforcement and intelligence officials enhanced powers to investigate and prevent terrorism. I'm optimistic that Congress will soon approve bipartisan legislation to improve border security and to strengthen our defenses against bioterrorism.

As these examples demonstrate, our system of constitutional government has served us well in this time of crisis. Now is the time to defend our Constitutionnot to undermine it.

At today's hearing, and at the hearings that will follow, the Committee will consider the policies and actions by the Administration since September 11 that have raised serious questions about basic liberties protected by the Constitution. Some of these policies may be justified, but they are difficult to evaluate, because of the Justice Department's failure to provide information requested by members of the Committee.

Many of us have serious doubts about both the constitutionality and the wisdom of the President's plan to establish military tribunals to try foreign suspects apprehended within the United States or overseas. The Constitution gives Congress the power to define and punish "offences against the law of nations," and to create courts inferior to the Supreme Court. Yet Congress has not expressly authorized the kind of military commissions contemplated in the President's order.

Advocates of military tribunals have argued that foreign terrorist suspects do not deserve the same constitutional safeguards-such as the right to counsel, proof beyond a reasonable doubt, and appellate review-that are given to U.S. citizens in normal criminal cases. These safeguards, however, exist to identify the guilty and protect the innocent. They are not luxuries to be dispensed with in times of crisis. Just this year, the Supreme Court re-affirmed the principle that non-citizens within our borders-whether lawful, unlawful, temporary, or permanent—are entitled to the same fundamental constitutional rights as U.S. citizens.

For many years, the United States has strongly criticized the use of military tribunals in other countries. If we engage in such practices now, it could undermine

our position of authority in the world, and limit our ability to extradite terrorist suspects apprehended by our allies.

In recent years, Congress has expanded the jurisdiction of federal courts to cover a wide range of terrorist offenses, and has implemented innovative court procedures to protect government secrets. International tribunals have been used effectively to try suspected terrorists, in the tradition of Nuremberg, Yugoslavia, Rwanda, and the Pan Am 103 bombing. The Administration has not adequately explained why secret, ad hoc military tribunals should be used, instead of established legal forums, either domestic or international, to bring the perpetrators of the September 11th attacks to justice.

I am also deeply concerned about the decision of the Department of Justice to monitor attorney-client communications. Detainees have long had a constitutional right to speak with their attorneys on a confidential basis. The Department's new policy allows monitoring to take place without judicial supervision and without even a showing of misconduct by the attorney involved. The Department bears a heavy burden to explain why existing procedures for investigating crimes and fraud by attorneys are inadequate, and why this unprecedented obstruction of the right to counsel is constitutional.

Similarly, many questions have been raised about the 1200 people or more who have been detained-since September 11. Few of these detainees have been linked to terrorist activities. Last month, I joined other members of the House and Senate Judiciary Committees in asking Attorney General Ashcroft about the status of these detainees. We also asked for a briefing. We have still not received a full accounting of everyone who has been detained and why.

Finally, many of us are also concerned about the Administration's decision to question 5,000 immigrants, almost all of whom are Middle Eastern, who recently entered the country legally.

Unfortunately, the Department has failed to provide Congress with sufficient information to perform its essential oversight role on each of these significant issues. I hope that Administration officials will be more forthcoming at these Committee hearings.

In a speech in 1987, Justice William Brennan observed that the United States had repeatedly failed to preserve civil liberties during times of national crisis-from the Alien and Sedition Acts of 1798, to the internment of Japanese Americans during World War Il-only to later realize "remorsefully...that the abrogation of civil liberties was unnecessary." As we face another crisis today, I am hopeful that we can avoid the errors of the past. To do this, the Administration and Congress must share information and work together, as we did in the weeks immediately following the September 11th attacks, to bring the terrorists to justice, to enhance our security, and to preserve and protect our Constitution.

Chairman LEAHY. Thank you. I would also note I will put in the record-because Senator Hatch had mentioned my question to the Attorney General on military commissions-actually in the hearing record I ask specifically and directly whether the President was considering this option, and the Attorney General answers, it would be inappropriate and premature basically to answer that. I will put that in the record, and of course, everybody can draw whatever conclusion they want.

Chairman LEAHY. Senator Specter.

STATEMENT HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

Senator SPECTER. Thank you.

There is no doubt that the atrocious, barbaric conduct of the terrorists on September 11th require very, very strenuous response by the United States, and there is a very heavy burden on the Government today to do everything in its power to prevent a recurrence and to protect this country and its citizens from bioterrorism, and that is a very heavy responsibility which I believe the Congress is facing up to squarely with the very prompt enactment of the Resolution for the Use of Force two days after September 11th, the ap