being detained and why; the basis for continuing to hold individuals who have been cleared of any connection to terrorism; and the identity and contact information for lawyers representing detainees. We also wanted information regarding the government's efforts to seal proceedings and its legal justification for doing so.

In early November, the Department announced it would no longer release comprehensive tallies of the number of individuals detained in connection with the September 11 investigation and that it would limit its counts to those held on federal criminal or immigration violations. Thus, it would no longer keep track of those held on state or local charges, nor would it indicate how many people have been released after being detained.

Just before Thanksgiving, the Department provided copies of the complaints or indictments for about 46 people held on federal criminal charges. It also provided similar information on about 49 people held on immigration violations, but redacted their identities. Last week, the Attorney General announced the number and identities of all persons held on federal criminal charges and the number, but not the identities, of persons held on immigration charges. The total number of detainees is roughly 600 individuals. But the Department continues to refuse to identify the 548 persons held for immigration violations, or provide even the number of material witnesses, or the number and identities of persons held on state or local charges. I am not satisfied with this response but we now know a lot more about the detainees than we knew at the end of October. This illustrates the crucial role of congressional oversight as a check on the executive branch.

The Department has cited a number of reasons for its refusal to provide additional information. Very troubling is the Department's assertion that those being held for immigration violations have violated the law and therefore "do not belong in the country." But without full information about who is being detained and why, we cannot accept blindly an assertion that each detainee does not deserve to be in the country. Do all of these immigration violations merit detention, without bond, and deportation? I doubt it, as some are very minor violations that under normal circumstances could be cleared up with a phone call. I hope that today's hearing will shed some light on this issue.

The Department also says it is protecting the privacy of the detainees by refusing to release their identities, and they are free to "self-identify" if they want. But as we will hear this afternoon, some of these individuals have been denied access to lawyers or family, for days or weeks at a time. So, it rings hollow to suggest that detainees are in a position to self-identify. My strong sense is that people in detention cannot just call the New York Times or this Committee if they want the public to know the circumstances of their cases. Our witnesses today should help us to assess whether the option of self-identification is a real option.

As this hearing will bring into focus, there are concerns that the Department's investigation has employed a clumsy, dragnet approach, which is increasingly proving to be offensive to the Arab and Muslim American communities and has come under criticism by a number of highly respected former FBI officials. I sincerely hope that the extraordinary effort to question immigrants from certain Arab and Muslim countries does not become counter-productive. In a rush to find terrorists, the Department appears to have disrupted the lives of hundreds of people, most of whom will prove to be wholly innocent of any connection to terrorism. Just as important, the trust of communities whose help is so crucial to preventing future attacks is being severely undermined.

We will hear today from Ali Al-Maqtari who was detained by federal officials in Tennessee for almost two months for a minor immigration violation that would not usually merit detention. We will also hear from his lawyer, Michael Boyle, who will discuss his experience in representing Mr. Al-Maqtari and the experience of his colleagues who are representing detainees. Following Mr. Boyle, we will hear from Mr. Goldstein, who will talk about the challenges he faced in his representation of Dr. Al Badr Al Hazmi, a radiology resident in San Antonio, Texas, who was detained following the September 11 attacks for nearly two weeks. Finally, Nadine Strossen, of the American Civil Liberties Union, will talk about why disclosing basic information about the status of the detainees is imperative and comment on the implications of questioning over 5,000 young men from Arab and Muslim countries.

This Friday, December 7th, our nation will mark the 60th anniversary of the bombing of Pearl Harbor, a day that President Roosevelt then said "would live in infamy." While our nation made great strides for mankind as a result of our victory in World War II, we also lost something of ourselves when we interned over 120,000 Japanese Americans and thousands of German and Italian Americans. We later came to regret those acts. I do not suggest that what is now going on rivals that deplorable action taken in the name of national security. But I do think we need to learn a lesson from this history to question our government when it appears to

be overreaching. Such questions are not unpatriotic and should not be viewed as an inconvenience by the Executive Branch. They are a crucial tool for Congress to play its constitutional role in protecting the great heritage of this country and the rule of law.

I will now turn to the ranking member, Senator Hatch, for his opening statement. Before I do, I want to thank the Chairman and Senator Kennedy for their leadership on this issue. I also want to thank Senator Hatch for his cooperation with Senator Leahy and myself in putting this hearing together.

Senator FEINGOLD. Whenever Senator Hatch arrives, perhaps after the break, we certainly will turn to him for his opening statement. I also want to thank the chairman and Senator Kennedy for their leadership on this issue and I, of course, want to thank Senator Hatch for his cooperation with Senator Leahy and myself in putting this hearing together.

I think this gives us an opportunity, then, to begin the first panel. I would ask Mr. Viet Dinh to join us.

Our first witness this afternoon is Mr. Viet Dinh, the Assistant Attorney General for Office of Legal Policy. The Justice Department asked that Mr. Dinh be permitted to testify at this hearing to give the Department's views. He has served as Assistant Attorney General since May 31 of this year. Prior to his government service, he was a professor of law at Georgetown University Law Center. He also served as special counsel to the Senate Whitewater Committee and to Senator Domenici during the impeachment trial of President Clinton.

I welcome you, sir, but I would ask that you limit your oral remarks, if you could, to five minutes so that we can make sure we have time to get to the next panel, in light of the problem with the vote interrupting us for some time. I appreciate your being here, and certainly, without objection, your full written statement will be placed in the record.

Mr. Dinh?

STATEMENT OF VIET D. DINH, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

Mr. DINH. Thank you very much, Senator, members of the Committee, and I thank you for putting the full statement in the record. Let me say first that it is not an inconvenience for me to be here. Rather, it is an honor, and thank you for having me here to answer the questions that the Committee has and continues to have and it is a great opportunity to answer some of these questions.

Your opening statement was quite moving, and so if I may, I will enter my written statement into the record and just very briefly touch upon the theme that you started with your opening statement about the nature of liberty in America. It is a question that has revolved in my mind since September 11, and more honestly, September 12, because September 11 was a day of numbness for

me.

But on September 12, I began to ask the question that I think most Americans have started asking themselves in this period also. That is, why? Why is it that these zealots are willing to give up their own lives in order to take the lives of thousands of innocent Americans and freedom-loving people around the world in that hor

rendous attack of September 11? Is it because we are somehow better than the people of the world? I do not think so.

Americans-look around this room-Americans are the people of the world, as you say. The inscription at the base of the Statue of Liberty, it says, "Give me your tired, your poor, your huddled masses." It does not say, give me your highest SAT. It does not say, give me your best and brightest. It says, give me your lowest. Give me the ordinary people of the world and I will promise you something special. I will promise you liberty. I will promise you freedom. and with that liberty, with that freedom, America lets the ordinary people of the world do their ordinary things but achieve extraordinary things as Americans.

So as we go forward in responding to the threat of terrorism in the future and responding to the attacks of September 11, we are very mindful that we would not sacrifice these values of freedom and liberty and institutions that safeguard this freedom. At the same time, however, America is asking us to deliver to her people a different kind of freedom, freedom from fear, for without the safety of their persons and the security of their nation, Americans would not be able to go about doing those ordinary things that make America an extraordinary nation.

And as we go forward in this process since September 11 and continue to prosecute this war on terror, we have tried and we have committed to preserving this balance in order to defend freedom through law, which is the work, after all, of the Department of Justice.

I will speak very briefly to three areas that are of interest to this Committee. First, with respect to the detentions, as of last evening, there are 608 persons in Federal custody on criminal or immigration charges growing out of our investigation into the September 11 attacks. Of that total, 55 are being held on Federal criminal charges. The remaining 553 are being detained on immigration-related charges. The Department has charged a total of 105 persons for violation of criminal law. Some of those indictments or complaints have been filed under seal by order of court. The names and charges against all others have been publicly released.

Every one of these detentions, let me assure you, is fully consistent with established constitutional and statutory authority. Each of the 608 persons detained has been charged with a violation of either immigration law or criminal law or is the subject of a material witness warrant issued by a court.

Every one of these individuals has a right of access to counsel. In criminal cases and in cases of material witnesses, of course, the person has a right to a lawyer at government expense if he or she cannot afford one. Persons detained on immigration violations have a right to access to counsel, and the INS provides each person with information about available pro bono representation.

Every person detained has a right to make phone calls to family members and attorneys. Under INS procedures, once they get into custody, aliens are given a copy of the Detainee Handbook, which details their rights and responsibilities, including their living conditions, clothing, visitation, and access to legal materials. In addition, every alien is given a comprehensive medical assessment. Detainees are informed of their right to communicate with their na

tion's consular or diplomatic officers, and for some countries, the INS will notify those officials that one of their nationals has been arrested or detained. Aliens are permitted access to telephones.

Finally, immigration judges preside over legal proceedings involving aliens and aliens have a right to appeal any adverse decisions, first to the Board of Immigration Appeals, and then to the Federal Court.

Second, let me address the Justice Department's plan to conduct voluntary interviews of individuals who may have information relating to terrorist activity. On November 9, the Attorney General directed all United States Attorneys and members of the Joint Federal and State Anti-Terrorism Task Forces, the ATTFs, to meet with certain non-citizens in their jurisdiction. The Deputy Attorney General, Larry Thompson, issued a memorandum outlining the procedures and questions to be asked during those interviews.

We seek to interview those who we believe may have information that is helpful to the investigation or to disrupting ongoing terrorist activity. The names were compiled using common sense criteria that take into account the manner in which al Qaeda has traditionally operated, according to our intelligence sources.

Thus, for example, the list includes individuals who entered the United States with a passport from a foreign country in which al Qaeda has operated or recruited, who entered the United States after January 1, 2000, and who are males between the ages of 18 and 33.

The President and the Attorney General continually has emphasized that our war on terrorism will be fought not just by our soldiers abroad, but also by civilians here at home. Last week, the Attorney General announced a new plan to enable our nation's guests to play a crucial part in this ongoing campaign. Non-citizens are being asked on a purely voluntary basis

Senator FEINGOLD. Mr. Dinh, I am going to have to ask you to conclude.

Mr. DINH. I will. Let me just describe this one particular program and I will conclude-on a purely voluntary basis to come forward with useful and reliable information about persons who have committed or are about to commit terrorist attacks. Under this Cooperators' Program, aliens may then be eligible to receive S visa and other immigration status adjustments in order to facilitate their stay in this country and/or help us with our continuing fight, and with that, I would love to answer any questions.

Senator FEINGOLD. Thank you, Mr. Dinh, and, of course, your full statement will be placed in the record.

[The prepared statement of Mr. Dinh follows:]

STATEMENT OF VIET D. DINH, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL

POLICY, U.S. DEPARTMENT OF JUSTICE

Good afternoon, Mr. Chairman and Members of the Committee. Thank you for the opportunity to testify today on the Department of Justice's response to the terrorist attacks of September 11 and our continuing efforts to prevent and disrupt future terrorist activity.

September 11 was a wake-up call to America and, indeed, to freedom-loving people around the world. To ensure the safety of our citizens and the security of our nation against the threat of terrorism, the Department has undertaken a fundamental redefinition of our mission. The enemy we confront is a multinational network of evil that is fanatically committed to the slaughter of innocents. Unlike en

emies that we have faced in past wars, this enemy operates cravenly, in disguise. It may operate through so-called "sleeper" cells, sending terrorist agents into potential target areas, where they may assume outwardly normal identities, waiting months, sometimes years, before springing into action to carry out or assist terrorist attacks. And unlike ordinary criminals the Department has investigated and prosecuted in the past, terrorists are willing to give up their own lives to take the lives of thousands of innocent citizens. We cannot wait for them to execute their plans; the death toll is too high; the consequences are too great.

To respond to this threat of terrorism, the Department has pursued an aggressive and systematic campaign that utilizes all information available, all authorized investigative techniques, and all the legal authorities at our disposal. The overriding goal of this campaign is to prevent and disrupt terrorist activity by questioning, investigating, and arresting those who threaten our national security. In doing so, we take care to discharge fully our responsibility to uphold the laws and Constitution of the United States. All investigative techniques we employ are legally permissible under applicable constitutional, statutory and regulatory standards. As the President and the Attorney General have repeatedly stated, we will not permit, and we have not permitted, our values to fall victim to the terrorist attacks of September

11.

Before responding to your questions, I will speak briefly to three areas that are of interest to this committee. First, the Department's detention of individuals since September 11; second, the directive that our Anti-Terrorism Task Forces conduct voluntary interviews of individuals who may have information relating to our investigation; and finally, the Bureau of Prison's regulation to permit the monitoring of communications between a limited class of detainees and their lawyers, after providing notice to the detainees.

With respect to detentions, as of Monday, December 3, there are 608 persons in federal custody on criminal or immigration charges growing out of our investigation into the September 11 attacks. Of that total, 55 currently are being held on federal criminal charges; the remaining 553 are being detained on immigration-related charges. The Department has charged a total of 105 persons for violations of federal criminal law. Some of those indictments or complaints have been filed under seal by order of court. The names and charges against all others have been publicly released. Every one of these detentions is fully consistent with established constitutional and statutory authority. Each of the 608 persons detained has been charged with a violation of either immigration law or criminal law, or is the subject of a material witness warrant issued by a court.

Every one of these individuals has a right to access to counsel. In the criminal cases and in the case of material witnesses, the person has the right to a lawyer at government expense if the he or she cannot afford one. Persons detained on immigration violations have a right to access to counsel, and the Immigration and Naturalization Service provides each person with information about available pro bono representation. Every person detained, whether on criminal or immigration charges or as a material witness, has the right to make phone calls to family members and attorneys. No one is being denied their right to talk to their attorneys.

Under the Immigration and Naturalization Service's generally applicable procedures, detainees enjoy a variety of rights, both procedural and substantive. Once taken into custody, aliens are given a copy of the "Detainee Handbook," which details their rights and responsibilities, including their living conditions, clothing, visitation, and access to legal materials. In addition, every alien is given a comprehensive medical assessment, including dental and mental-health screenings. Aliens are informed of their right to communicate with their nation's consular or diplomatic officers, and the INS will notify those officials that one of their nationals has been arrested or detained. Aliens are permitted access to telephones-which they may use to contact their family members or attorneys-during normal waking hours. Finally, Immigration Judges preside over legal proceedings involving aliens, and aliens have the right to appeal any adverse decision, first to the Board of Immigration Appeals, and then to the federal courts.

Second, let me address the Justice Department's plan to conduct voluntary interviews of individuals who may have information relating to terrorist activity. On November 9, the Attorney General directed all United States Attorneys and members of the joint federal and state Anti-Terrorism Task Forces, or "ATTFS", to meet with certain noncitizens in their jurisdictions, and the Deputy Attorney General issued a memorandum outlining the procedures and questions to be asked during those interviews.

The names of approximately 5000 individuals that were sent to the ATTFS as part of this effort are those who we believe may have information that is helpful to the investigation or to disrupting ongoing terrorist activity. The names were compiled