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 Jus

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. 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 Presidentto 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

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. 8? 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

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. 8 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

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-inChief, 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.