where there is a state of armed conflict, as the Supreme Court has recognized, we are now dealing with the national defense power of the United States, the law of war applies and tribunals are part of the war power.

Whether or not a combatant is engaged in military operations or has been captured, the relationship between the sovereign Government and that individual is the relationship of us exercising national defense power against that individual. That is what military tribunals involve, the exercise of military or, that is, the war power as to those individuals. It is not the judicial power of the United States.

Now no war need be declared for this power to come into being. It is an adjunct of any lawful use of force by the Government. And the Supreme Court and Congress have recognized repeatedly that the country can exercise its powers of national defense and engage in armed conflict without a formal declaration of war. And, indeed, from the very foundation of the Republic, it was recognized, particularly where the United States is attacked and the President is responding to attacks, there is no requirement for a declaration of war for there to be the lawful use of the war power.

The question has been raised whether Congress has to authorize the use of military tribunals. The answer is obvious. Congress does not have to authorize it because it is an incident of the war power. As the Supreme Court has repeatedly said, it is just like the President moving a division from Point A to Point B. It is incident to the war power just like hearings and subpoenas are incident to the legislative power, and therefore it does not require any specific authorization.

So, even if there was nothing in the U.S. Code or in the laws, the Commander-in-Chief could constitute military tribunals to try cases that arise under the laws of war. But, of course, the fact is that Congress has sanctioned them and specifically recognized their jurisdiction in 10 U.S.C. 1821.

Now one of the problems arises because people naturally feel concerned when these tribunals would be used against people in the United States. I think there seems to be a visceral understanding that overseas, where we apprehend people on the battlefield, it does not make much sense to bring them back and try them in our civil courts for violations of the laws of war, but there seems to be a concern that, gee, what happens when someone comes into the United States?

From a legal standpoint, there is no geographical limit to the principle that when the Government is defending the country and exercising its war powers against armed foreign nationals who are waging war against the United States, it does not matter whether those nationals are overseas or where they have successfully entered the United States.

The last time that an armed adversary came into the United States abiding by the rules of war was, I think, in 1814, when the British came in their red coats openly bearing arms. They were not entitled to our constitutional protections. They are not entitled to due process. Their rights as combatants come from the laws of war, not our Constitution.

The fact that a foreign adversary enters the United States successfully does not mean that all of a sudden he becomes invested with constitutional rights. If he robs a bank, he breaks the civil order and we proceed against him, he gets the same rights as a citizen. If he is bearing arms against the United States and waging war against the United States, he gets no right under the Constitution. His rights arise under the laws of war.

Now here we have a different kind of entry, surreptitious entry by an enemy, which is itself a violation of the laws of war. They did not come in uniform, they did not come openly bearing arms, and they came with the intent of destroying civilian targets. For the same reason that a uniformed adversary who sets foot in this country is not entitled to constitutional protections, the same is true, if not more so, for someone who violates the laws of war by entering surreptitiously, which the Supreme Court has repeatedly held and has averted to numerous times.

Nevertheless, that does raise the issue, when you start using military tribunals against people who are present in the United States, there may be an understandable concern that, in theory, this is a device that could be abused and taken too far. The question really is, is it being taken too far here, and there is no evidence at all that it is. In fact, we have a very clear objective, events that establish that this is not being used as a pretext.

We are in a very dangerous situation of unprecedented and kind of war we are waging. It has to be predicated on the President's determination that this is triable, these individuals have committed violations of the law of war that are traditionally triable in military tribunals, it applies only to noncitizens, and notwithstanding some of the hysterical commentary, the Supreme Court has not been stripped of habeas corpus jurisdiction over individuals who are in the United States. This language was in President Roosevelt's executive order. It follows President Roosevelt's executive order and Quirin shows that the Supreme Court could exercise habeas corpus to ensure that there was no abuse.

Thank you.

[The prepared statement of Mr. Barr follows:]

STATEMENT OF HON. WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF THE UNITED STATES

Mr. Chairman, Senator Hatch and the Members of the Committee, I am pleased to provide my views on the important issues surrounding our response as a Nation to attacks against our homeland and the continuing national security threat posed by al Qaeda. By way of background, I have previously served as the Assistant Attorney General, the Deputy Attorney General, and the Attorney General of the United States. I have also served on the White House staff and at the Central Intelligence Agency. The views I express today are my own.

President Bush's decision to authorize the use of military tribunals against members of al Qaeda is not only well within his constitutional authority, but is supported by ample historical precedent and practical common sense. Al Qaeda is an armed foreign force that is waging war against the United States. In confronting such an enemy, the President is acting as Commander-in-Chief of our armed forces he is exercising the war powers of the United States. Our national goal in this instance is not the correction, deterrence and rehabilitation of an errant member of the body politic; rather, it is the destruction of foreign force that poses a risk to our national security. It is anomalous to maintain that the President has constitutional authority to order deadly bombing strikes or commando raids against such an enemy, while at the same time maintaining that, if the enemy surrenders or is captured, the President is suddenly constrained to follow all the constitutional

protections applicable to domestic law enforcement. Foreign nationals who are in a state of armed conflict with the United States do not enjoy the same constitutional rights as American citizens. Since before the Revolutionary War, it was recognized that those who violate the laws of war during an armed conflict have the status of "unlawful belligerents" and are subject to military trial for their offenses. Whether they pursue their deadly purpose in a training camp in Afghanistan or a flight school in Florida, al Qaeda members are unlawful belligerents and, under clear Šupreme Court precedent, are entitled only to treatment consistent with the laws of war. Having cast their lot by waging war against the United States, they are properly judged by the laws of war.

1. THE PRESIDENT HAS CONSTITUTIONAL AUTHORITY TO ORDER THE TRIAL OF AL QAEDA MEMBERS BY MILITARY TRIBUNAL.

On September 11, 2001 this Nation was attacked by a highly-organized foreign armed force known as "al Qaeda." The attack cost more American lives and caused more property damage than the Japanese sneak attack on Pearl Harbor. This same organization has declared itself at war with the United States and has stated its intention to use any weapons at its disposal—including weapons of mass destruction against both civilian and military targets. Prior to September11, 2001, al Qaeda acknowledged perpetrating armed attacks on our military personnel, our naval ships, and our embassies. al Qaeda operatives and their supporters are presently engaged in the field against our own military forces in Afghanistan. They have personnel in over 60 countries, where they are undoubtedly poised to attack United States interests. There can be little doubt that "cells" of this organization remain in the United States, ready to carry out further attacks.

It is clear that a state of war exists between the United States and al Qaeda. Al Qaeda has openly proclaimed a war against the United States and has repeatedly carried out attacks against us. The President, as Commander-in-Chief, is empowered to take whatever steps he deems necessary to destroy this adversary and to defend the Nation from further attack. As the Supreme Court recognized in The Prize Cases, 67 U.S. 635, 668 (1862):

If a war be made by the invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be "unilateral."

In this case, the President's judgment that a state of armed conflict existed is confirmed by the actions both of the Congress and our allies. By its Joint Resolution of September 18, 2001, Congress recognized that the attacks of September 11th "render it both necessary and appropriate that the United States exercise its rights to self-defense. "Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, (2001). Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. "Id. § 2(a). The Joint Resolution expressly recites that it constitutes a specific statutory authorization for the use of military force within the meaning of the War Powers Resolution. Id. § 2(b). Obviously, the President does not need a joint resolution of Congress to enforce our domestic criminal laws, and those laws are not generally for the "self-defense" of the Nation. Similarly, our NATO allies have recognized that the attacks of September 11th constitute acts of war by invoking the mutual self-defense provisions of Article 5 of the North Atlantic Treaty.1 When the United States is engaged in an armed conflict and exercising its powers of national defense against a foreign enemy, it is acting in an entirely different realm than the domestic law enforcement context. The Nation, and all those who owe her allegiance, are at war with those foreign enemies. That is not an analogy or a figure of speech-it describes a real legal relationship and one that is fundamentally different from the government's posture when it seeks to enforce domestic law against an errant member of society. When we wage war, the Constitution does not give foreign enemies rights to invoke against us; rather, it provides us with the means to defeat and destroy our enemies. As President Lincoln understood, and

1 Article 5 of the North Atlantic Treaty can only be invoked in the case of an "armed attack" against a NATO member.

repeatedly said, maintaining the security of our Union is the sine qua non of all civil liberties. It is the basis upon which the exercise of all other civil rights depends.

Much of the criticism of the President's Executive Order authorizing the use of military tribunals stems from a fundamental confusion between the realm of domestic law enforcement and the realm of military defense of the Nation. This is not a confusion that has been shared by past Presidents, past Attorneys General, or the United States Supreme Court. Since the Revolutionary War, this country has used military tribunals to punish violations of the laws of war by our enemies during armed conflicts. Congress has consistently confirmed the jurisdiction of these tribunals by statute and the Supreme Court has recognized that military tribunals lie outside the judicial power and the constitutional norms that must attend a civilian trial. Military tribunals constitute part of the executive function of the actual prosecution of war-they are an instrument at the President's disposal as part of the overall war effort. The President's decision to use them in our war against al Qaeda is supported by historical precedent, Supreme Court decisions, and common sense. American history is replete with examples of the use of military tribunals to try foreign combatants for violations of the laws of war. The legitimacy of their use does not depend upon the nature of the armed conflict, whether a formal declaration of war has been made, or whether the unlawful belligerent committed the violation here or abroad. Thus, in 1780, George Washington appointed a "Board of Commissioned Officers" to try Major John Andre, a British spy who was accused of receiving strategic information from Benedict Arnold. In 1818, then-General Andrew Jackson ordered two British citizens tried by a military tribunal for inciting Seminole Indian attacks against American civilians in Georgia. Military tribunals were used extensively during the Civil War to try confederate soldiers and spies who acted out of uniform to attack Union ships or industrial plants. See Ex Parte Quirin, 317 U.S. 1, 31 n. 9 (1942) (listing examples). Indeed, a military tribunal, known as the Hunter Commission, was empanelled to try those responsible for the assassination of President Lincoln. In opining on the constitutionality of such a commission, Attorney General Speed wrote: "The commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war. "11 U.S. Op. Atty. Gen. 297, 305 (1865). He further opined that the laws of war provided for military trials for "secret participants in hostilities, such as banditti, guerillas, spies, etc. "Id. at 307.2 Attorney General opinions have also recognized that military tribunals could be used to try Indians for crimes against civilians where a state of open hostility between an Indian tribe and the United States existed. See, e.g., 14 U.S. Op. Atty. Gen. 249 (1873) (Modoc Indian prisoners accused of crimes against civilians during hostilities with the United States could be tried by military tribunal). See also 13 U.S. Op. Atty. Gen. 470, 471 (1871) (noting that war need not be "formally proclaimed" for the laws of war to apply to military engagements with Indian tribes).

The most recent and most apt example of the use of military tribunals is the trial of the eight Nazi saboteurs that took place before seven military officers here in Washington, D. C. in July of 1942. These foreign operatives were trained in what the Supreme Court referred to as a “sabotage school” near Berlin. Ex Parte Quirin, 317 U.S. at 21. They entered the United States surreptitiously, moved about in civilian dress, and were trained and equipped to attack civilian targets such as roads, bridges and industrial plants. They were initially arrested and detained by civilian authorities. President Roosevelt determined that they should be tried for violations of the laws of war before a special military commission, composed of seven United States army officers.

In Ex Parte Quirin, a unanimous Supreme Court upheld the jurisdiction of the military commission to try these individuals for violations of the laws of war. Echoing Attorney General Speed, the Supreme Court found that the military tribunal was "an important incident to the conduct of war," that allowed the President "to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." 317 U.S. at 28

2 Attorney General Speed's opinion has stood the test of time. Recently, a federal district court rejected a challenge to the jurisdiction of the Hunter Commission in reviewing the denial of a request to correct military records pertaining to Dr. Samuel Mudd, the medical doctor who aided John Wilkes Booth and David Herold after the assassination. See Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001). Relying upon the Supreme Court's Quirin decision, the district court found that "persons such as spies or combatants not wearing uniforms or in disguise, who may come secretly across enemy lines for the purpose of robbing, killing or destroying bridges, roads, canals, etc.," are "unlawful belligerents" subject to military trial for violations of the laws of war. Id. at 145.

29. Thus, these tribunals were part and parcel of the Commander-in-Chief's prosecution of the war effort. The Supreme Court held that military tribunals were not an exercise of the judicial power conferred by Article III of the Constitution, and therefore were not subject to constraints imposed upon civilian criminal process by the Fifth and Sixth Amendments. Id. at 38-39. The Court noted that unlawful belligerents had been subject to military trial since before the framing of the Constitution, and that Congress had authorized the trial of alien spies by military tribunal shortly after the adoption of the Constitution. Id. at 41. The Supreme Court also noted that anomaly that would be created by a contrary ruling-our own soldiers would be subject to military trial for violations of the laws of war while enemy aliens charged with such violations would receive all the constitutional protections of a civilian trial. Id. at 44.3

The Supreme Court's ruling in Quirin makes clear that unlawful belligerents cannot invoke the constitutional guarantees applicable to a civilian trial and are not entitled to judicial review of the results of a military tribunal. Indeed, Quirin_reserved the issue whether unlawful belligerents were entitled to a trial at all before the President could subject them to "disciplinary measures. "Id. at 47. Qurin's holding does not turn on location within or outside the United States, the potential applicability of civilian crimes, the availability of civilian courts, or even the citizenship of the individuals involved. Rather, Quirin turns entirely on status as "unlawful combatants" under the laws of war. It is this status that entitles the President to exercise military power against such persons-including the use of military tribunals.

Nor need we examine the issue reserved in Quirin of the Executive's authority to establish military tribunals absent legislative mandate. Congress has authorized the use of military tribunals consistent with the laws of war in the Uniform Code of Military Justice. Title 10, United States Code, Section 821, provides that: "The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals." The President is also given authority to prescribe the rules for all military tribunals, including "pretrial, trial, and post-trial procedures" and "modes of proof." See 10 U.S. C. §836. In Application of Yamashita, 327 U.S. 1, 7-8 (1946), the Supreme Court held that, by enacting the precursors to these provisions in the Articles of War, Congress had "sanction[ed] trial of enemy combatants for violations of the laws of war by military commission," and had "adopted the system of military common law applied by military tribunals."

The President's judgment that members of al Qaeda and those who knowingly give them aid and comfort are subject to military justice is clearly supported by the facts and the law in this case. The very raison d'etre of al Qaeda is to violate the laws of war by targeting innocent civilians in order to create a state of terror. As the Supreme Court noted in Quirin, never in the history of our Nation have foreign enemies who infiltrated our territory been accorded the status of civilian defendants with all the rights enjoyed by citizens of the United States. See 317 U.S. at 42 (“It has not hitherto been challenged, and, so far as we are advised, it has never been suggested in the very extensive literature of the subject that an alien spy, in time of war, could not be tried by military tribunal without a jury.") (footnote omitted). If armed al Qaeda members had made a military landing on Manhattan Island and began attacking civilians, few would argue that they were not combatants subject to the laws of war. How does the fact that they instead infiltrated the United States surreptitiously with the same evil purpose somehow give them greater constitutional rights? By such logic, Nazi war criminals could have avoided military justice simply by sneaking into the United States and invoking their "right" to a jury trial in civilian court.

2. DOMESTIC CRIMINAL JUSTICE PROCEDURES WILL FRUSTRATE OUR FIGHT AGAINST

AL QAEDA.

In addition to its sound constitutional and statutory basis, the President's Executive Order establishing the option of military tribunals makes good sense. It will allow for a more effective response to the al Qaeda threat, while at the same time

3 In Quirin, the Supreme Court reserved the constitutional issues of whether the President needed any legislative authorization to empanel military tribunals, see 317 U.S. at 29, and whether Congress could "restrict the power of the Commander in Chief to deal with enemy belligerents," id. at 47, because it found that Congress had approved the use of military tribuanals in the Articles of War.