forcement and intelligence communities for performing a tough job well in a very difficult time.

Now, Mr. Chairman, I also want to clarify some of the misconceptions about lawyer-client monitoring, detention of aliens, and military commissions, which are the issues that we intend to address today.

First, some have charged that lawyer-client monitoring is a flagrant violation of the Fourth and Sixth Amendments to the Constitution. While I agree that we should examine this power closely to determine whether it is a wise policy, the administration's regulation has been carefully crafted to avoid infringing on constitutional rights. It is well-established that inmates and detainees have greatly diminished Fourth Amendment rights while in custody, and the Supreme Court, in Weatherford v. Bursey, upheld the Government's authority to monitor detainee-attorney conversations where there is a legitimate law enforcement interest in doing so. The communications are protected from disclosure, and no information obtained through the monitoring is used by the Government in a way that deprives the defendant of a fair trial. The regulation recently promulgated by the Department of Justice appears to satisfy all of these conditions.

With respect to the detention of aliens, some have accused the Government of unlawfully holding detainees incognito and preventing them from obtaining legal counsel. As the Attorney General made clear at a news conference yesterday, these charges are, at best, irresponsible exaggerations. Those being held are in custody on criminal charges, immigration violations, or pursuant to material witness complaints under longstanding statutory authority. In other words, those people have committed crimes, violated our Nation's immigration laws, or have information critical to the terrorism investigation. And to the extent that they are not released on bond, it is because a judge has determined that they are likely to flee, will likely pose a danger to the community, or, in the case of immigration detainees, are alleged to be deportable from the United States on the basis of criminal-including terrorist-activity.

What is more, the detainees also have access to counsel who can assist them in challenging the legality of the detention. Any alien charged with a criminal offense or held as a material witness has the right to court-appointed counsel. Under longstanding immigration law, any alien charged with an immigration violation is unequivocally afforded a minimum of 10 days to secure counsel and may request a continuance for additional time if necessary. Many public interest groups have stepped in to provide counsel to those immigration detainees who cannot otherwise afford a lawyer.

As for the charge that these people are being held incognito, the Attorney General has, at least in my view, rightly refused to provide a public list of the names of the detainees. I personally agree, as an advocate of personal privacy rights, that such a list would not only alert our enemies to the status of our investigation, it would also violate the privacy of those being held. I find it richly ironic that the same civil liberties groups that adamantly oppose the publication of the names of sexual predators now wax indignant when the Department of Justice refuses to provide the New

York Times, the Washington Post, any other newspaper or any other media source a list of those detained in connection with this terrorism investigation.

Finally, there have been many alarmist and misleading statements about the potential use of military commissions. Most glaring is the claim by some of my colleagues this past weekend that military tribunals are "unconstitutional." The Supreme Court has repeatedly upheld the constitutionality of using military commissions to prosecute individuals charged with crimes under the law of war. Specifically, the Court unanimously upheld the constitutionality of President Roosevelt's use of a military commission to try eight Nazi saboteurs who entered the United States via submarine during World War II in Ex Parte Quirin. The Court also upheld the use of a military commission at the end of the war to try the Japanese commander in the Philippines for violations of the laws of war, In re Yamashita. As the Supreme Court has explained, "[s]ince our Nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war." That is in Madsen v. Kinsella.

Furthermore, contrary to recent suggestion, military tribunals can be and have been-established without further congressional authorization. Because the President's power to establish military commissions arises out of his constitutional authority as Commander-in-Chief, an act of Congress is unnecessary. Presidents have used this authority to establish military commissions throughout our Nation's history, from George Washington during the Revolutionary War to President Roosevelt during World War II. Congress, for its part, has repeatedly and explicitly affirmed and ratified the use of military commissions. Article 21 of our Code of Military Justice, codified at Section 821 of Title 10 of the United States Code, expressly acknowledges that military commissions have jurisdiction over offenses under the law of war.

Now, Mr. Chairman, the oversight we conduct today can be a useful exercise only if we steer clear of distortion and focus on the policy choices we face. That these tools-military tribunals, detainee-attorney monitoring, and detention of aliens are constitutional is largely beyond dispute. On the other hand, whether, how, and when they should be employed, and against whom, and with what oversight and accountability are questions we have a right to ask. And the administration is wise to answer.

As we confront these policy issues, I would ask my colleagues to heed the strong sentiment of the majority of the American people, both liberal and conservative, to do more than just criticize. It is easy to criticize from where we sit; it is much harder to go to work every day knowing that you are the person in charge of protecting Americans from terrorists. Yes, the administration has been aggressive in using all the constitutional powers at its disposal to protect Americans under these situations. But given what happened on September 11, wouldn't they be unforgivably derelict if they did not do everything in their power? After all, our enemies in this war are not, as many on the extreme left are fond of saying, simply trying to change our way of life. They are trying to kill Americans as many as they possibly can. And though we may

never know for certain, I for one believe that the steps taken by our law enforcement and intelligence communities have saved us from even more harm.

I think this is a legitimate hearing. It is an important hearing. It is legitimate to ask tough questions. These are important questions. And it is legitimate for us to find out just why the administration has taken the positions that it has in some of these areas. But let nobody be deceived. The administration can take these positions. They have to justify them, but they can take them, and I think there is more than enough information here to justify the positions they have taken.

I myself am very concerned when these type of broad powers are used, but under these circumstances I am less concerned, hoping that we can prevent future terrorist acts. But I want to thank you, Mr. Chairman, for calling this hearing. I think it is the right thing to do. I think you have led us in the proper direction in calling it and in asking the appropriate people the tough questions that need to be asked. And I look forward to hearing from our witnesses. Chairman LEAHY. Thank you.

Mr. Chertoff, 2 days ago, we received a request that you wanted to testify, and I am happy to concede to your request, with the understanding, of course, that the Attorney General will be here next week. I want to wish you a happy birthday on behalf of the Committee. I am sure this is the thing that you have looked forward to the most as a way to spend your birthday.

[Laughter.]

Chairman LEAHY. So consider it our gift to you. Please go ahead. STATEMENT OF MICHAEL CHERTOFF, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE Mr. CHERTOFF. Thank you, Mr. Chairman. Good morning, Mr. Chairman, Senator Hatch, members of the Committee. I do welcome the opportunity and appreciate the invitation to appear today to talk about the Department of Justice's response to the attacks of September 11th.

Mr. Chairman, I agree that we have taken steps here which represent a departure from some of the things we have done in recent times. But then, again, we are not in recent times. We face an extraordinary threat to our national security and physical safety of the American people of a character that, at least in my lifetime, we have never faced before.

The President and the Attorney General have directed the Justice Department to make prevention of future terrorist attacks our number one and overriding priority. And to that end, we are aggressively and systematically conducting an investigation that is national and international in scope. But I believe we are doing so within carefully established constitutional limits.

In fact, in conducting this investigation, I should point out we are already making use of the tools which the Congress passed in the recently enacted USA PATRIOT Act for which we commend the Congress in acting so swiftly.

Members of this Committee have raised important questions about some of the investigatory steps that we have taken in recent weeks, and I look forward during the course of this hearing to

learning more about the Committee's specific concerns, but also to having the opportunity to assure the Committee that what we are doing is both sound policy and well within constitutional limits.

All of us understand and appreciate the importance of honoring the Constitution's enduring values, even in a time of national crisis. And we believe the Constitution gives us the tools to respond to the threat while remaining faithful to our basic values.

I don't need to restate for the Committee the images we all bear of September 11th: planes crashing into the Twin Towers and the Pentagon, grieving and devastated faces of survivors, the firefighters, the image of firefighters ad police heroes, and even the passengers on United Flight 93 who were forcibly enlisted as combatants against terrorists. All of us have these images burned into our national consciousness.

But as a Nation, the overwhelming, brute fact of Senator is this: This country was wantonly and deceitfully assaulted by an enemy intent on destroying as many innocent lives as possible. Before September 11th, Osama bin Laden and his henchmen wanted to kill thousands of innocent Americans. On September 11th, they succeeded. And since September 11th, bin Laden and his co-conspirators have brazenly announced that they will kill more of us. In a February 1998 directive, bin Laden ordered his followers "to kill Americans and plunder their money whenever and wherever they find it." Just last month, bin Laden made a video, declaring to his supporters, "The battle has moved inside America, and we shall continue until we win this battle, or die in the cause and meet our maker."

So for those who question whether we are at war, my answer is Mr. bin Laden has declared war on us.

Unlike enemies we have faced in past wars, however, this is an enemy that comes not openly but cravenly and in disguise. The terrorists in the Al Qaeda network plan their terrors years in advance. They are sophisticated, meticulous, and patient.

Of particular concern is their use of so-called sleepers. A sleeper is a committed terrorist sent sometimes years in advance into a possible target location, where he may assume a new identity and lead an outwardly normal life, all the while waiting to launch a terrorist attack. I will give you a example from the 1998 embassy bombing in Nairobi, Kenya.

Mohamed Odeh, who was convicted early this year for participating in that bombing, spent 5 years undercover in Kenya while actively assisting Al Qaeda. During that time he started a fishing business. He got married. He lived an outwardly modest and quiet life. But when called upon, he played a critical role in unleashing the terror that killed hundreds of innocent people.

Now, how are we going to combat the terrorists' use of sleepers? In many ways it is more difficult than looking for the proverbial needle in a haystack because in this instance the needle comes in disguise, disguised as a stalk of hay. We could continue as before and hope for the best, or we can do what we are currently doing: pursuing a comprehensive and systematic investigative approach that uses every available lawful technique to identify, disrupt, and, if possible, incarcerate or deport persons who pose threats to our national security.

Are we being aggressive and hard-nosed? You bet. But let me emphasize that every step that we have taken satisfies the Constitution and Federal law as it existed both before and after September 11th.

Let me now turn very briefly to four areas that I know are of particular concern to the Committee.

First, the number of persons who have been arrested or detained arising out of the investigation into the events of September 11th and the conditions of their detention. There are currently 548 individuals who are in custody on INS charges and 55 individuals in custody on Federal criminal charges. Every person detained has been charged with a violation of either immigration law or criminal law or is being lawfully detained on a material witness warrant issued in connection with a grand jury investigation.

Every one of these individuals has the right to counsel. Every person detained has the right to make phone calls to family and attorneys. Nobody is being held incommunicado.

The identity of every person who has been arrested on a criminal charge is public. We have not released the names of persons being held on material witness warrants because those warrants are issued under seal as related to grand jury proceedings.

Finally, we have not compiled a public list of the persons detained on immigration charges, both to protect their privacy and for legitimate law enforcement purposes. But I emphasize there is nothing to prevent any of these individuals from identifying themselves publicly or communicating with the public.

Second, law enforcement is seeking to interview just over 5,000 persons on a voluntary basis. This list was assembled using common-sense criteria that take into account the manner in which Al Qaeda has traditionally and historically operated. So, for example, persons have been identified for interview because they entered the United States with a passport from one of about two dozen countries where Al Qaeda typically recruits or trains its members. Or people have been identified for interviews because they entered the country on particular types of visas that experience shows tend to be favored by terrorists.

Third, the monitoring of attorney-client communications. This monitor is taking place under a Bureau of Prisons regulation issued on October 31. It arises out of a 1996 Department regulation that permits monitoring of communications of inmates in Federal prisons where there is a substantial risk that if those people communicate with the outside, they may cause death or serious injury to others. The regulation applies only to 16 out of approximately 158,000 inmates in the Federal system.

The regulation or the regulatory amendment that was issued on October 31 extends the pre-existing special regulation to allow the monitoring of attorney-client communications for this very small group of people only if the Attorney General makes an additional finding that reasonable suspicion exists that a detainee may exploit his attorneys to communicate with others to facilitate acts of terrorism. And we have set up substantial safeguards to protect against the misuse of this information, which I will be happy to discuss.