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.] Hon. Senator Schumer SUBMISSIONS FOR THE RECORD ST. MARY'S UNIVERSITY SCHOOL OF LAW 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 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. 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. 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 Al Qaeda, (2) is in any way involved in "acts of international terrorism”—a term 1Id. at 21-23 (charging violations of Articles 81 & 82 of the Articles of War). 2 See Pub. L. No. 84-1028 (1956) (repealing Articles 81 & 82). 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 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'l 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. 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 Cu |