Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah 208 295 279 294 Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina Al-Maqtari, Ali, New Haven, Connecticut 212 Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of the Amer- Dinh, Viet D., Assistant Attorney General, Office of Legal Policy, Department 218 Emerson, Steven, Executive Director, Investigative Project, Washington, D.C. Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San Antonio, Texas on behalf of the National Association of Criminal Defense Lawyers Strossen, Nadine, President, American Civil Liberties Union, New York, New Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy Assist- ant Attorney General, Criminal Division, Department of Justice, Wash- DeWine, Hon. Mike, a U.S. Senator from the State of Ohio Edwards, Hon. John, a U.S. Senator from the State of North Carolina Feinstein, Hon. Dianne, a U.S. Senator from the State of California Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts Kyl, Hon. Jon, a U.S. Senator from the State of Arizona Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky Schumer, Hon. Charles E., a U.S. Senator from the State of New York Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina Ashcroft, Hon. John, Attorney General of the United States, Washington, 309 Timothy H. Edgar, Legislative Counsel, December 4, 2001, statement American College of Trial Lawyers, Irvine, California, letter and statement American Council of Chief Defenders, Washington, D.C., statement and at- William F. Schulz, Executive Director, statement September 11 detainees, sample information Angel, Cecil, Detroit Free Press, December 3, 2001, article Arab American Institute Foundation, Washington, D.C., report Ayub, Ali, Arlington, Virginia, December 3, 2001, letter Bar Association of San Francisco, San Francisco, California, letter Baxley, Bill, Attorney, Baxley, Dillard, Dauphin & McKnight, Birmingham, Brownback, Hon. Sam, a U.S. Senator from the State of Kansas and Hon. Ron Wyden, a U.S. Senator from the State of Oregon, November 2, 2001, Heritage Foundation, Washington, D.C., November 5, 2001, memorandum Human Rights Committee, Charles D. Siegal, Chair, Los Angeles, California, Kmiec, Douglas W., Dean and St. Thomas More Professor of Law, The Catho- lic University of America School of Law, Washington, D.C., letter Koh, Harold Hongju, New York Times, November 23, 2001, article Schulz, William F., Amnesty International USA; Kenneth Roth, Human 581 Slaughter, Anne-Marie, Professor of Law, Harvard Law School, Cambridge, New York Times, November 17, 2001, article and William Burke-White, December 3, 2001, statement Wall Street Journal, December 4, 2001, editorial Washington Post, November 16, 2001, editorial Wedgwood, Ruth, Wall Street Journal, December 3, 2001, article York, Byron, National Review, December 3, 2001, article ALPHABETICAL LIST OF WITNESSES 584 585 586 587 588 590 591 Al-Maqtari, Ali, New Haven, Connecticut Ashcroft, Hon. John, Attorney General of the United States Barr, William P., former Attorney General of the United States Bell, Griffin B., Senior Partner, King and Spalding, and former Attorney Boyle, Michael J., Attorney, New Haven, Connecticut, on behalf of the Amer- 218 Dinh, Viet D., Assistant Attorney General, Office of Legal Policy, Department Emerson, Steven, Executive Director, Investigative Project, Washington, D.C. Goldstein, Gerald H., Esq., Goldstein, Goldstein, and Hilley, San Antonio, Texas on behalf of the National Association of Criminal Defense Lawyers Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 68 93 Nardotti, Michael J., Jr., Major General (Retired), former Army Judge Advo- cate General, and Partner, Patton Boggs LLP, Washington, D.C. Prosper, Hon. Pierre-Richard, Ambassador-at-Large for War Crimes Issues, Silliman, Scott L., Executive Director, Center on Law, Ethics and National Security, Duke University School of Law, Durham, North Carolina Strossen, Nadine, President, American Civil Liberties Union, New York, New Sunstein, Cass R., Karl N. Llewellyn Distinguished Service Professor of Juris- prudence, Law School and Department of Political Science, University of Toensing, Victoria, diGenova and Toensing, LLP, and former Deputy Assist- ant Attorney General, Criminal Division, Department of Justice, Wash- Tribe, Laurence H., Tyler Professor of Constitutional Law, Harvard Law 159 DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE DEFENDING AGAINST TERRORISM WEDNESDAY, NOVEMBER 28, 2001 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. The Committee met, pursuant to notice, at 9:05 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kennedy, Kohl, Feinstein, Feingold, Schumer, Durbin, Hatch, Grassley, Specter, Kyl, DeWine, Sessions, and McConnell. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. Good morning. This is one of a series of hearings this Committee is holding on the Department of Justice's response to the September 11th attacks and on implementation of the anti-terrorism legislation, the USA PATRIOT Act. I know I speak for those on both sides of the aisle in beginning this hearing by commending the hardworking men and women of the agencies of the Department of Justice and also our State and local officers for their dedicated law enforcement efforts. We have seen it across this country, and, of course, we have seen it especially in the affected areas of the terrorist attacks. Now, at the time Congress worked on the anti-terrorism bill, many observed how important congressional oversight would be in the aftermath. And to fulfill our constitutional oversight obligation, Senator Hatch and I invited Attorney General Ashcroft to appear before the Committee today, but he asked to have his appearance put off until next week so that he could spend time with the U.S. Attorneys who are in town today and tomorrow. And on Monday, I learned that the Department was asking that Mr. Chertoff appear as our first witness at this hearing. I have accommodated both requests by the Attorney General. I look forward to his appearance before the Committee next week on December 6th. In the meantime, our oversight hearing today and additional hearings next Tuesday should help build a useful record on several significant issues. We are all committed to bringing to justice those involved in the September 11 attacks and to preventing future acts of terrorism. As we showed in our passage of anti-terrorism legislation, Congress can act promptly to equip the executive branch with the appropriate tools to achieve these goals. The administration requested many new powers, and after adding important civil liberty protections, we empowered the Justice Department with new and more advanced ways to track terrorists. We passed the bill in record time and with an extraordinarily level of cooperation between Democrats and Republicans, the House and the Senate, and the White House and Congress. The separate but complementary roles of these branches of Government, working together and sharing a unity of purpose, made that bill a better law than either could have made through a unilateral initiative. In the wake of that achievement, the administration has departed from that example to launch a lengthening list of unilateral actions, and that is disappointing because we had worked together to get the original legislation. Rather than respect the checks and balances that make up our constitutional framework, the executive branch has chosen to cut out judicial review in monitoring attorney-client communications and to cut out Congress in determining the appropriate tribunal and procedures to try terrorists. The three institutional pillars of our democratic Government are stronger guarantees of our freedoms than any one branch standing alone. America benefits when we trust our system of Government— our system of checks and balances-to work as it should. And most Americans trust that it would. And today we may get some insights into why the administration has chosen this new approach. Today and in the days ahead we will have an opportunity to explore the Executive action to charter military tribunals that bypass our civilian justice system, to permit eavesdropping on attorney-client communications without court orders, and the circumstances under which hundreds are being detained without public explanation. Whether any or all of these ideas are popular or unpopular at the moment, as an oversight Committee we accept our duty to examine them. The President's Military Order of November 13 paves an overly broad path to the use of military commissions to try those suspected of a variety of activities. It is a marked departure from existing practices and raises a wide range of legal and constitutional questions and international implications. As with several of the unilateral steps announced by the administration over the last month, a question that puzzles many about the order on military tribunals is this: What does it really gain us in the fight against terrorism? Would military commissions, however expedient, genuinely serve our national interests in the long term? As we examine the wisdom of the military order as written, we should consider the risk whether this could become a template for use by foreign governments against Americans overseas. As written, the military order does not incorporate basic notions of fairness and due process, those notions that are the hallmark of American justice. It does not specify a standard of guilt for convicting suspected terrorists. It decrees that convictions will not be subject to judicial review, a determination that appears to directly conflict with our inter |