The Secretary of Defense may cut it back to reasonable exercises, and I think these hearings are a very important step in that process. But the claim of power here over people all over the world and 20 million people in the United States made on the basis that the President is asserting seems to me to be something that should not go unchallenged.

Senator SPECTER. Well, I thank you. I believe it is enormously helpful to have I am sorry I didn't get a chance to ask Professor Silliman or Ms. Martin or Professor Katyal a question, but it is very helpful to have this kind of mature thinking and questioning, and to come to a conclusion which accommodates security and constitutional rights.

Thank you.

Chairman LEAHY. Thank you, Senator Specter.

I think as a practical matter, the question of who advises whom is going to be asked next week. The Attorney General is going to be before this Committee, and I believe the Secretary of Defense is going to be before the Armed Services Committee, and I am sure that they will have the same story. Otherwise, it gets interesting. But I am sure they will.

General Barr, Professor Heymann, General Bell, Professor Silliman, Professor Martin and Professor Katyal, thank you very much. I agree with what has been said here on both sides of the aisle. Your presence here, all of you, has been extremely helpful. I know you have been here a long, long time, and I do want to add please feel free to add to your transcript. You may get additional questions. This has been very helpful, on what is probably the most contentious issue presently before the Congress. So thank you all very much.

We stand adjourned.

[Whereupon, at 1:32 p.m., the Committee was adjourned.]

DEPARTMENT OF JUSTICE OVERSIGHT: PRESERVING OUR FREEDOMS WHILE DEFENDING AGAINST TERRORISM

TUESDAY, DECEMBER 4, 2001 (MORNING SESSION)

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C.

The committee met, pursuant to notice, at 10:08 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Charles Schumer, presiding.

Present: Senators Schumer, Feinstein, Feingold, Durbin, Hatch, Specter, Kyl, and Sessions.

OPENING STATEMENT OF HON. CHARLES SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

Senator SCHUMER. The hearing will come to order. I will make and then Senator Sessions will make brief opening statements. There won't be any others since Senator Leahy and Senator Hatch are not coming, and we will then get right to the witnesses.

Before I begin, I want to thank Senator Leahy for helping us schedule this hearing. Tomorrow, as you know or Thursday, rather, Attorney General Ashcroft will be here. There are so many questions to ask him, and there have been so many questions asked on this issue of military tribunals that Senator Leahy and I both thought it was a good idea to have a sort of warm-up panel, almost, to flesh out some of those questions before we hear from Attorney General Ashcroft. And so I want to thank Senator Leahy for helping us schedule this hearing this morning.

On September 11th, our world changed dramatically, and our focus and our priorities changed along with it. We went from a country of peace whose most pressing concern was a slipping economy to a Nation at war with a new kind of enemy. In this war, we are battling terrorists instead of nations. In this war, some of our enemies are already here plotting against us in our towns and cities and on our own American soil. The FBI has already captured some suspects who the Justice Department believes were involved in the terrorist plot of September 11th.

There are also those prisoners of war who we have captured and will capture in Afghanistan and other countries who will receive a trial of some sort. It is clear we need to try those suspects in a forum that achieves two primary goals-two goals, I might add, that may not conflict. First, the Government must have the power to use even the most sensitive classified evidence against these sus

pects without compromising national security in any way, shape, or form. In addition, those who commit acts of war against the United States, particularly those who have no color of citizenship, don't deserve the same panoply of due process rights that American citizens receive. Should Osama bin Laden be captured alive and I imagine most Americans hope he won't be captured alive. But if he is, it is ludicrous to suggest he should be tried in a Federal court on Center Street in Lower Manhattan.

Nevertheless, the second priority is to ensure that our proceedings, wherever they are held, respect our Nation's great tradition of due process. No one wants trials that are ad hoc or regarded as unfair, so we need established and fair procedures.

We all want and we all must have trials that both protect our national security interests and at the same time respect our Nation's great tradition of due process. I believe we can, and the question is how we get those two goals to co-exist.

The administration has proposed the use of secret military tribunals as part of the solution. Secret military tribunals constitute a significant departure from our normal legal system. I believe strongly and many of my colleagues on both sides of the aisle agree that any departure this significant should be vetted by Congress. That is what we are doing here today.

Congressional involvement is essential for a number of reasons. First, it respects our tradition of checks and balances. Second, it offers an opportunity to discuss how to meet the two goals of safeguarding national security and ensuring basic rights. That discussion will not only produce a better final product, but it will give the final product more legitimacy in the eyes of the American people and of our friends abroad.

I think that is the lesson we learned from the anti-terrorism bill. The Justice Department sent up a list of anti-terrorism proposals that some criticized as going too far. Chairman Leahy offered a set of proposals that some thought didn't go far enough, and there were some points, for instance, many of us, myself included, agreed with the Justice Department and others where we agreed with Senator Leahy. We ended up with a bill, in my judgment, that was more balanced, more fair, and more effective than either of the first proposals by either side, and that is because this committee was involved, not in a dilatory way, not in a partisan way, but simply in a way to come to the best product. And the final product was better public policy. That is what I hope we can work towards with this issue as well.

The President is clearly right in saying that some of the terrorism trials will require a forum outside our regular Federal courts. And the administration is also correct in saying that some of the terrorist suspects we capture, especially an American citizen who commits an act of terrorism in this war, could be tried in our regular Federal courts with certain processes to guard secrecy.

So we agree that trying at least some terrorists will require a new type of forum, and for others, particularly for American citizens, we may be able to use our preexisting courts, although we might need new procedures to protect national security. There is that much of a consensus.

But when we use a new type of forum or when we use new procedures in a traditional forum, we need to figure out how such a process should work. That means answering the following types of questions:

Should traditional Article III judges preside, or should we bring in special magistrates? What standards of evidence are most appropriate? What burdens of proof should be used? Should a conviction require the decisions of a unanimous jury? How do we ensure that defendants receive effective assistance of counsel? Is there a right to appeal? If so, how should the appeals process work?

These are just some of the questions we hope to begin to answer today.

It is also interesting to note that the proposed answers to these questions don't fall along the typical liberal and conservative lines. There are some on the right, such as William Safire and the Cato Institute, who oppose military commissions. There are some on the left, including some of the witnesses here today, who support military commissions. It just shows how complicated these issues really

are.

To answer these questions, we have brought a distinguished panel of professors, experts, and practitioners who I will introduce after Senators Hatch and Sessions make their opening statements. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

Senator HATCH. Well, thank you, Mr. Chairman. I appreciate it. I want to thank you for convening this hearing to discuss military commissions. This issue has generated a great deal of attention, and I hope this hearing will enlighten the Congress and the public again about the difference between the real issues and the alarmist rhetoric that has been swirling around Capitol Hill in the past few weeks.

Now, I hope the participants in this hearing will keep in mind three basic facts about the President's Order. First, the Order is very narrow. The only people it allows to be tried by military commissions are non-citizens specifically determined by the President to be members of Al Qaeda, supporters of Al Qaeda, or people engaged in other international terrorist networks. Secondly, the Order is a military command. It instructs the Secretary of Defense, not the Attorney General, to develop rules and procedures for conducting fair trials for those whom the President designates. And, third, the Order has not been utilized; as of today, the President has not determined that anyone will be tried by military commission, and the Secretary of Defense is still working on the rules and procedures. And the only secrecy that I can see that is involved here with regard to military tribunals is the protection of national security matters. And I believe that is probably the way this is going to wind up.

These four points are essential to a useful discussion here today because they explain the two different avenues of questioning that have emerged. Our primary interest here is examining the legal and constitutional question as to whether the Order, by itself, is proper and allowed. I think the answer to that is yes, and I will explain more about that in just a minute.

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