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

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 ter

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

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 AlHazmi-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,

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