position that you are in. I just want to compliment you for all of the hard, difficult and good work that you have done. It has meant alot to me, and I think it means a lot to our country. Thank you so much. Mr. CHERTOFF. Thank you. Thank you, Mr. Chairman. Chairman LEAHY. You can go have your birthday lunch now. Chairman LEAHY. Thank you for coming. Just so we understand, all members understand, please, give to either Senator Hatch or myself, any follow-up questions which will be delivered to Mr. Chertoff by the end of business today, and we would ask you to respond to those by the end of the week, so that we can have them in hand and prepared prior to Attorney General Ashcroft next week. Mr. CHERTOFF. I will do that. Chairman LEAHY. I thank you. Mr. CHERTOFF. Thank you, Mr. Chairman. Senator SPECTER. Mr. Chairman? Chairman LEAHY. Yes. Senator SPECTER. I was asked if I wanted to have a second round, and I said yes. Chairman LEAHY. Oh, I had asked the ranking member if he wanted further. Senator HATCH. If I could, I really believe that we need to get to that next panel. I know that they are pressured on their time. That is one reason why, you know, I do not make the determination, but I suggested that we should move to the second panel. Senator SPECTER. Well, the second round is 5 minutes. Chairman LEAHY. If the Senator from Pennsylvania wants 5 minutes, it is fine with the chairman. Senator SPECTER. Yes. Chairman LEAHY. Go ahead, but let us see if we can keep it 5 minutes. Senator SPECTER. Mr. Chertoff, as a follow-up to the questions that I had posed earlier, you have said that the President is relying on his Article II powers in the promulgation of the executive order, and he does refer to the authority, as Commander-in-Chief, which obviously is a very generalized authority. The Congressional Research Service, which has done extensive research on this question, comes down flatly with the statement that the Constitution empowers the Congress to establish courts with exclusive jurisdiction over military offenses, and cites as the authority Clause 14 of Section 8 of Article I, which says that "the Congress has the power to declare war, grant letters of marque and reprisal and make rules concerning captures on land and water." And there is the express grant of authority for Congress to make the rules concerning captures on land and water, which would certainly encompass everybody in the military tribunal. In the President's executive order, he then cites specific statutory authority, which I quoted earlier, saying that unless impractical, the rules in the United States District Courts, as to evidence and law shall apply. Now, as a matter of constitutional interpretation, you say that the generalized authority as Commander-in-Chief gives the President the authority over the Congress on this issue in the light of the specific authorization of Article I, 8, 14? Mr. CHERTOFF. Actually, Senator, what I think I am saying is that we do not need to get there. Because, as I understand Section 8-21 of Title 10, Congress chose not to occupy the field, so to speak, and create exclusive jurisdiction, whether it could do so or not is a matter I understand has been debated by various people. Senator SPECTER. Where do you derive the conclusion that Congress chose not to occupy the field? Mr. CHERTOFF. Section 8-21 is entitled, "Jurisdiction of Court Martial Not Exclusive," and says, "The provisions of this chapter conferring jurisdiction upon court martial do not deprive military commissions, ellipsis, of concurrent jurisdiction with respect to of fenders or offenses that by statute or by the law of war may be tried by military commissions." Now that provision was addressed by the Madsen case by the Supreme Court at 343 US, at Page 352, where the Court indicated that that language preserved for such commissions the existing jurisdiction which they had over such offenders and offenses. Senator SPECTER. But, Mr. Chertoff, that case does not involve the constitutional authority of Congress. When you talk about occupying the field, you are talking about legislative intent to have exclusive control over a subject or whether the States may legislate or whether there may be other authority, but occupying the field does not go to constitutional authority. The Constitution is fundamental and is not a matter of legislative interpretation as to what is occupying the field. Mr. CHERTOFF. I think, to try to be a little more clear, Senator, what I am saying is that, regardless of how one weighs the debate over whether the President could authorize these tribunals, even in the face of an explicit grant of exclusive jurisdiction to the Federal courts, and I understand there is a debate about that both ways, and I do not portray myself as an expert in that, the Courts have interpreted this section as indicating that Congress has not reserved exclusive jurisdiction over military Senator SPECTER. But you are talking about a section of a statute Mr. CHERTOFF. Correct. Senator SPECTER. You are not talking about a constitutional provision and the application of occupying the field. Mr. CHERTOFF. I think what I am suggesting Senator SPECTER. Let me just-I think, really, the answer may be in a little comity back and forth to try to work it out. We want you to have the authorities you need, but where Congress has said that the regular rules apply unless it is deemed impracticable, I think that is what we need to get to. In your statement where you talk about the need for secrecy, if there were will be a disclosure of matters, that is a cogent reason if it comes up in a specific case. Let me come back to a question which I have broached, but there was not time, on the Attorney General's rule establishing detention. Did the Attorney General meet the statutory requirements for an opportunity to comment on his rule? He put it into effect before it was even published in the Federal Register. Was there compliance with the provisions that there had to be an opportunity, a notice and an opportunity for comment? Mr. CHERTOFF. Is this the rule with respect to the monitoring of attorney-client communications? Senator SPECTER. No, it is the rule with respect to detainees, which was put into effect, which was written on the 26th, put into effect on the 29th, and not even published in the Federal Register until the 31st, without any opportunity for comment. I just want to know if the Attorney General complied with the applicable law on that subject. Mr. CHERTOFF. I have to say, Senator, not being familiar with the promulgation and the process by which the rule was promulgated, I would certainly be happy to get back to you with an answer to that question. Senator SPECTER. I would appreciate it if you would. The red light is on, and I know we have to move on. So, if you would provide that in writing to the Committee, we would appreciate it. Mr. CHERTOFF. Sure. I would be happy to. Senator SPECTER. Thank you very much. Mr. CHERTOFF. Thank you. Chairman LEAHY. Thank you. Thank you, Senator Specter. Mr. CHERTOFF. Thank you, Mr. Chairman. Chairman LEAHY. If we could bring the next panel up, please. They have been waiting very, very patiently. We have tried to accommodate the administration and my colleague, Senator Hatch, by having Mr. Chertoff first, and it was worthwhile. We will put in the record a number of press accounts and also leave the record open for any statements of any Senators. [The prepared statements of Senator Grassley and Senator Thurmond follow:] STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Thank you Mr. Chairman for holding this timely hearing. The past two and half months since September 11th have been trying times for all Americans. At the same time, we are a nation united against the terrorist threat-both at home and abroad-with greater strength and resolve than at any time in our history. I had a chance to see this first hand during the past Thanksgiving break in meetings with first responders back home in Iowa. In these meetings with firefighters, police, emergency and HAZMAT officials, and public health officers, there was a broad consensus that the battle against terrorism be waged aggressively, but that we do so without sacrificing those principles that make our nation unique. That's why we made every effort to ensure that the antiterrorism proposal submitted by the Administration and the Department of Justice fit well within the bounds of the Constitution. After all, these are the values that we hold dear and what defines us as a nation. Throughout this process, the Attorney General and the Department of Justice worked with both sides of the aisle to produce a consensus package that would give our law enforcement community the tools they need to keep this nation safe against terrorists. That bipartisan package, the USA/PATRIOT Act, passed overwhelmingly by a vote of 98-1. Since then, the Administration and the Attorney General have sought to further strengthen their battle against terrorism with additional law enforcement tools. Many, including the Chairman, have questioned these initiatives. I understand and appreciate those concerns. It's the job of Congress, and this Committee, in particular, to ask the questions about the appropriateness of these policies. So, I'm pleased that we are having this hearing today to make sure that we appropriately balance the real and pressing need for enhanced national security after the September 11th attacks with the protection of our civil liberties. I look forward to today's testimony. STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA Mr. Chairman: I appreciate your concern for the protection of civil liberties while our Nation fights a war against terrorism. We must not violate our Constitution in the name of extinguishing terror, or we will endanger the very freedoms that make our country great. We must not sacrifice our liberties in attempting to bring our enemies to justice. In our struggle against terrorism, it is important that we protect America by enacting reasonable and measured law enforcement initiatives that also respect individual liberties. The Bush Administration is employing a variety of tools in the fight against terrorism, such as the use of military tribunals and the current detention of suspected terrorists. Some groups claim that these tools are unconstitutional. However, I believe that the Bush Administration is pursuing initiatives that are consistent with the Constitution and do not endanger American freedoms. When exploring the constitutionality of any law enforcement initiative, it is important to ask whether the proposal is reasonable. I think that these hearings will bring to light the reasonableness of the Administration's actions. President Bush's military order provides for the trial of foreign terrorists by military commissions. Not only is the President's order historically based, but it was made pursuant to 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. Moreover, 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. In addition to historical precedent, Congress has approved the use of military commissions under the law of war (10 U.S.C. § 821). It has been suggested that the President does not have authority under 10 U.S.C. § 821 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 committed by terrorists. At this moment, American forces are engaged in a war against terrorism. It is a unique war because al Qaida is a loosely organized group spread throughout many different countries. In these unique circumstances, it is unreasonable to insist that an official declaration of war be made because the enemy is a shadowy network of international terrorists. Military commissions are also good ideas as a matter of policy. These commissions would allow for the use of classified information. If such information were easily disclosed in a civilian court, intelligence operations could be seriously endangered. 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 translate to evidence gathered on the battlefield. Another action taken by the Bush Administration is the current detention of alien suspects. While it is important that we release individuals in a timely manner, we must also take national security concerns into account. In Zadvvdas v. Davis, 121 S. Ct. 2491 (2001), the Supreme Court held that aliens under a final order of removal from the United States may be held for up to six months, and that longer periods may be justified in certain circumstances. The Court also noted that there may be special circumstances justifying the detention of especially dangerous individuals in cases presenting national security implications. In my view, deference should be given to the executive branch in situations involving national security. While we should continue. to practice oversight, we should not jump to hasty conclusions. It is important to note that because the terrorist attacks occurred in September, no person has been held for the presumptively reasonable time period of six months. 81-998 D-3 Mr. Chairman, I am pleased that we are carefully considering the President's efforts to fight terrorism. While I think that much of the criticism directed towards the Administration is inaccurate, 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 against international terrorism. I hope that my colleagues will join me in supporting the Administration's efforts to combat terror. Chairman LEAHY. We have on the panel former Attorney General William Barr. Mr. Barr it was, as always, good to be with you last week. I enjoyed our conversations and a chance to get caught up on a lot of subjects; and Professor Heymann, who is the former Deputy Attorney General of the United States and one who has spent a lot of time in this room before the Committees; former Attorney General Bell from Duke University; Scott Silliman, who is no stranger to the members of this Committee. He is the executive director of the Center on Law, Ethics and National Security, Duke University; Kate Martin, who is the director of the Center for National Security Studies; and Neal Katyal, a visiting professor, Yale School, who is now a professor of law at my old alma mater, Georgetown. Attorney General Barr, if you would like to-first off, I want to thank all of you for staying. This has been a long morning. Those of you who have been in the administration know that when we accommodate the requests of the administration and the senior member of the President's party to have an administration witness come, that they get a chance to go a little longer than we thought. General Barr, good to have you here. STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY Mr. BARR. Thank you, Mr. Chairman, Senator Hatch. I would like to briefly touch on the legality or the constitutionality of the military tribunal order of the President, and then recognize that there are really two issues beyond that, and that is whether it is prudent and advisable in a particular circumstance to use those procedures or whether greater rights and procedures should be given, in a particular case, given to a foreign national who is at war against the United States. And then, finally, the so-called civil rights concerns, and the understandable concerns that may emerge if these things were to be applied to people within the United States. I think there is no doubt that the President was well within his constitutional authority to promulgate this order, as his predecessors took similar steps. It is important to recognize we are talking here about two distinct realms. There is a fundamental difference between the Government, when it is acting in a law-enforcement capacity, that is, when it is acting within the framework of civil society, regulating civil society, setting up procedures, processes, rights, levels of appeal, and so forth, the rules of the game within society, and the realm, when the Government is acting in national defense, that is, when that society comes under attack by foreign adversaries. They are wholly different, and the relationship between the Government and the individual changes radically once there is a state of armed conflict from a foreign or armed adversary. In that case, |