therefore they will be dealt with if they have committed domestic crimes in the ordinary way that people under Article III are.

In order to be full within the scope of this order, you would have to be someone who could be tried for committing crimes against the laws of war; meaning being an enemy belligerent who has engaged in or supported hostilities against the United States. So that is a fairly high standard, I would think, and it does not apply to people who are in custody for garden-variety criminal offenses.

In terms of asking how many people are currently in custody who could conceivably eligible for this order, I think I am limited because I do not think I am in a position at this point to identify the state of our investigation with respect to particular individuals or to disclose whether there is anybody we have identified that we have in custody that is someone that we would consider to be an active terrorist who has violated both domestic terrorism laws and the laws of war.

So I do not know that I can give you that, but I can tell you that people who are found in the commission of garden-variety crimes are not people who violated the laws of war, and therefore by its terms would not fall under this order.

Senator FEINSTEIN. Just one quick follow-up. Is it fair to say that there are some now in detention that would be subject to this order?

Mr. CHERTOFF. Senator, I do not feel that I can, at this point in time, make a statement as to the status of anybody in terms of whether we have a level of proof about their activities that would rise to what you would need in order to prosecute them for a war crime.

Senator FEINSTEIN. Thank you.

Thanks, The CHAIRMAN.

Chairman LEAHY. Perhaps the time to do this would be after the Attorney General's testimony, but if there are issues that should be addressed only in a closed session, and if the Senator from California wants one, I am sure that the Senator from Utah and I requested under the normal procedures this Committee does. Senator McConnell?

Senator MCCONNELL. Thank you, Mr. Chairman. This has been a very interesting hearing. I want to congratulate Mr. Chertoff on an excellent presentation.

We have been talking about what kind of due process rights we are going to provide to a universe of people who I believe, am I not correct, are 100-percent noncitizens?

Mr. CHERTOFF. That is correct.

Senator MCCONNELL. So this whole discussion is about a universe of people who are not citizens of the United States, and I think it is important to remember that.

Let us then confront a potentially perverse result that could occur. An American serving in the United States Army in this country could conceivably end up with fewer safeguards because he would be subject to a military trial; would he not, Mr. Chertoff?

Mr. CHERTOFF. My understanding is, yes, under the Uniform Code of Military Justice.

Senator MCCONNELL. Right. So you could have the perverse result in which an American citizen who happened to be a member

of the U.S. military being tried in a military court, not a military commission, such as we are talking about here, but a military court having fewer sort of generally recognized due process safeguards than a foreign terrorist captured either here or overseas and brought here and tried, such as the terrorists were tried after the 1993 World Trade Center bombing; is that not correct?

Mr. CHERTOFF. Well, Senator, I am not an expert in military justice. It is my understanding, although the system of rights under the Uniform Code is different, it actually does afford servicemen a considerable degree of protection in terms of their rights. There are some differences. I would not want to, though, suggest that it is an inferior form of justice. It is a different form of justice.

Senator McCONNELL. But many would suggest that the reason for having a military tribunal in the first place is that the procedures are somewhat more efficient, shall we say, and maybe

Mr. CHERTOFF. There are protections, for example, for handling classified evidence I think that are somewhat different than

Senator MCCONNELL. Let me try again. Would it be correct to assume that it is possible, under the scenario that seems to have been suggested here this morning, that you could have a foreign terrorist tried in a civilian trial in the United States with a lesser standard of what is generally believed to be due process than an American citizen serving in the U.S. military here? For example, they do not get a jury trial.

Mr. CHERTOFF. Well, again, and I do not want to venture into talking about the Uniform Code because I really do not know very much about it, my understanding is in some circumstances you do get a jury.

Senator MCCONNELL. Let us assume that you do not get a jury trial in the military

Mr. CHERTOFF. Then that would be a

Senator MCCONNELL. Just assume that for the sake of discussion. Would it not be safe then to conclude that an American citizen in the military who has to go to trial without a jury would have less sort of generally recognized due process rights than a foreign terrorist brought to the United States and tried in a regular civilian court?

Mr. CHERTOFF. I think, if one were to assume that is true, then it would be the case that the terrorist would have an additional

Senator MCCONNELL. Which is totally, let me suggest, is a totally perverse potential result of what we are discussing here this morning, completely absurd. It would be further incentive to foreign agents to be sure they got caught here, would it not?

Mr. CHERTOFF. Yes. I think there is no doubt that one thing that this order operates to do is remove the assurance that a terrorist might have that there is a safe haven. The last thing we want to do is create the perverse incentive for terrorists to feel they ought to come into this country, because then they are home free, and get a higher measure of protection than they would get if they are caught in the field.

Senator MCCONNELL. Which leads me to my next question. In effect, we would have the potential of a repeat of the O.J. Simpson trial, complete with grandstanding by defense lawyers, in a trial of Osama bin Laden or his henchmen, with the potential to be set

free. Because, let us just take a hypothetical, let us assume that the case was about an anthrax attack, that there was not a pristine, perfectly established chain of custody for anthrax, you could have these people being set free.

In fact, what I would like you to do is just sort of give us a litany of things that could go wrong that would compromise our effort to fight terrorism if such trials were held in a U.S. civilian court, if you could just sort of give us a litany of all of the things you can think of that could go wrong that would compromise sources, methods, that allow us to conduct a war on terrorism, hopefully, in an effective way.

Mr. CHERTOFF. Well, let me begin, Senator, by saying this. I do not want to be taken as suggesting that I have any lack of faith in the ability of our domestic criminal courts to trial terrorist cases. I have to say that the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.

That being said, we are in a different situation, both as to the scope of the challenge we face and as to the nature of the challenge we face. There are certain considerations that in the individual case could wisely counsel for the President not to pursue the domestic criminal route. Certainly, for example, we would not want to bring people into this country in significant numbers to be present in American cities where they pose a danger to the populace. It is a fact that in past cases involving terrorists tried in this country, the judges have had to be under guard, and some of that requirement for security

Senator MCCONNELL. And what about the jurors? What about the threat to jurors?

Mr. CHERTOFF. Jurors as well, and that has persisted for a period of time, even after the trials are over. It may not be fairSenator MCCONNELL. What about the reporters covering the trial?

Mr. CHERTOFF. Well, I probably would not venture there with the reporters.

Senator McCONNELL. And the judge.

Mr. CHERTOFF. But the judges, there are judges who are still under protection as a consequence of that. So, plainly, the President could consider those factors.

It is the case that up to now we have been successful in dealing with classified information, but clearly in the current environment, we may have some situations where there are individuals that we need to prosecute, where a large bulk of the information is classified, and we would not want to be in the position that we are in the domestic courts of having to drop the case because we cannot sacrifice confidentiality.

And there may be technical problems, in some instances, given the far-flung nature of the investigation and the fact that we are accumulating evidence on the ground, presumably, in Afghanistan, where the need to have somewhat more streamlined procedures would commend itself to the President.

I also want to be careful not to suggest that our domestic courts are incapable of doing these cases.

Senator McCONNELL. I am not suggesting that you are suggesting that, but it is a practical result of this, would it not be the case, that jurors who were called could possibly look forward to having to have security for the rest of their lives.

Mr. CHERTOFF. I do not know that we have had a case where the jurors have had to have security for the rest of their lives.

Senator MCCONNELL. But they might desire it as a condition for even participating.

Mr. CHERTOFF. I think there can be concerns in some instances about juror security, judge security, security of witnesses, and that is certainly an important consideration.

Senator McCONNELL. Obviously, some of these things are on the mind of the President or he would not have suggested that we wanted to have this option in the first place.

Mr. CHERTOFF. I think that is quite true.

Senator MCCONNELL. Thank you, Mr. Chertoff.
Chairman LEAHY. Thank you.

Senator Kohl?

Senator KOHL. Thank you, Mr. Chairman.

Mr. Chertoff, since the events of September 11th, the President and the Justice Department have commanded the trust and the support of the American people and the Congress more than ever as they prosecute the war on terrorism, and we are proud to provide that support. However, with that trust comes, as you know, responsibility. The fabric of our society is built upon the rule of law, and the expectation that our civil liberties will be protected as much as possible, even in extreme situations.

When changes are made to our laws in the name of security or terrorism or war, in an effort to safeguard Americans, we are understanding, and yet we deserve to be told how these changes are being made and why. This does not indicate a lack of trust or patriotism; rather, it demonstrates the strength and the vitality of our democracy.

With regard to the use of military tribunals, the curbs placed on the attorney-client privilege, and the detention of hundreds of people, we are suggesting to the administration to do the rule of law a great favor and prevent a clearer picture of what this all about; explain to us why all of these hundreds of people need to be detained and who they are; tell us your reasoning for the changes to the attorney-client privilege and what you hope to get from it; and detail for us who will likely be prosecuted in military tribunals and what the rules governing these trials are going to be.

We trust the administration when they tell us that these measures will be used only infrequently. Nevertheless, it is our responsibility to verify that when they are used, it is for good cause and as fairly as possible.

It causes a great deal of consternation in our country when we hear that Americans abroad will be subject to foreign military courts. We worry whether the Americans on trial will be afforded an attorney, an impartial jury and a fair chance to defend themselves. Just, for example, take the case of American Laurie Berenson, accused of treason in Peru back in 1996.

We were justifiably angry when she was secretly convicted before hidden judges in Peru's supreme military justice commission, without any explanation of the verdict. Americans were upset that she did not receive a public trial, and therefore questioned the legitimacy of the verdict. When Peru relented in the year 2000 and agreed to hold a public trial, our State Department was vocal in support of the open and the fair proceeding, even though she was convicted a second time.

So the same holds true when are the ones holding the secret trials. It demonstrates uncertainty about the strength of our democracy to try suspected terrorists without the same protections we want for our own citizens abroad. William Safire wrote in the New York Times this week that, in its present form, the military tribunal "cedes to other nations overseas the high moral and legal ground long held by U.S. justice, and on what leg," he says, "the U.S. does now stand when China sentences an American to death after a military trial, devoid of counsel chosen by the defendant." These, I believe, are fair concerns and ones that need to be addressed, and we are suggesting to the administration that it is not too late to provide these answers.

Mr. Chertoff, would you please respond to the idea that the perception, both at home and abroad, with regard to our dedication to the rule of law and our judicial system, is tarnished. How would you suggest we correct that without ceding the moral high ground held by our justice system?

Mr. CHERTOFF. Well, Senator, I reject the notion that our moral high ground has been tarnished. I think, again, I begin with the fact that what the President has done is, as I said earlier, opened the constitutional cupboard and taken out his traditional constitutional power to authorize military commissions, and he has taken the first step in that direction, and he has directed the Secretary of Defense now to devise principles and rules that will, in the words of his order, provide for a full and fair trial.

Now we have not seen those yet. They are in the works. To presume, somehow, that the Department of Defense and the lawyers there are going to come up with a kangaroo court procedure I think is to do them an injustice, and still less would I presume the President would countenance that. He has made it very clear he wants to have a full and fair trial.

The presumption that we are going to hold secret, hidden commissions I think is an unfounded assumption. The order specifies that the rules are to be developed, paying due regard to the need to protect classified information, but I do not read in the order some mandate that everything has to be done in secret. I think, in fact, the President's counsel indicated publicly, shortly after the order was issued, that there was a general desire to be open, consistent with the needs of security and classified information.

So that I think to presume the worst, and to assume that the procedures that will be written will be unfair or create a drumhead court martial is to do a disservice, frankly, to the men and women of the Department of Defense who are in the process of writing rules. If, when the rules are written there are matters to be criticized, I am sure there will be ample time to criticize them, but I think that the President has made it clear that what he wants is