Senator FEINGOLD. I noticed in the tape, one of the gentlemen was a Mr. Revell, who was one of your experts. I want to place in the record, without objection, an article by Jim McGee of the Washington Post entitled, "Ex-FBI Officials Criticize Tactics on Terrorism," in which Mr. Revell is quoted as follows. With regard to the detention, or the proposal to interview 5,000 people by the Justice Department, he said that while that practice may have a shortterm deterrent effect, that the tactic is problematic. His actual quote is, "One, it is not effective, and two, it really guts the values of our society, which you cannot allow the terrorists to do."

So this is one of the individuals that was quoted on this tape making that statement about one of the things that the Justice Department is doing. Without objection, that will go in the record.

At this point, I will turn to our last witness, Nadine Strossen. She is the President of the American Civil Liberties Union. She is also a professor of constitutional law at New York Law School. The ACLU has been at the forefront of protecting civil liberties for decades and their work has taken on even greater importance since September 11. I believe the ACLU has done our country a great service by reminding us that we must defend our cherished freedoms even as we face enormous national security challenges at home and abroad. I thank you for your leadership and for joining us today. You may proceed.

STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL LIBERTIES UNION, NEW YORK, NEW YORK

Ms. STROSSEN. Thank you so much, Chairman Feingold, Senator Sessions, other members of the Committee. The ACLU is, indeed, concerned with our freedom, but we are, of course, also concerned with safety, and the logo on our website since September 11 has been "Safe and Free."

Along with Oliver Buck Revell, whom I too noticed-I had read his critical comments and I was surprised to see him on the filmthese law enforcement officials are saying the same thing, or perhaps it is the obverse, that the measures that we are criticizing, including the massive secretive detentions and the round-up of 5,000 people, mostly on the basis of national origin, are the worst of both worlds. They are not going to be effective, as Mr. Revell himself said, and they certainly are going to make us less free.

As you pointed out, Senator Feingold, the critiques have been coming from local law enforcement officials around the country, interestingly enough, not only from California and Oregon, but also from Texas, from the Middle West, and they have been coming from present and former FBI officials.

Now, in my limited time, I am going to try to focus on a few points that really have not been covered so thoroughly and many others are covered in my written testimony.

First of all, we have heard assertions from the government, including this morning, that these massive so-called interviews of 5,000 young men from certain countries are supposedly voluntary. How voluntary is it, though? I have the letter that is being sent to these individuals and here is the exact pertinent language. It reads, "While this interview is voluntary, it is crucial that the investigation be broad-based and thorough and the interview is im

portant to achieve that goal. We need to hear from you as soon as possible, by December 4," interestingly enough, today.

I think it is fair to say that most people who receive that letter would not see this as a voluntary request for an interview. It is particularly true when we are talking about these individuals who are foreigners, new to this country, and in particular, as we keep hearing reports and government acknowledgement that hundreds of people are already in jail for minor immigration violations, no doubt these interviews are going to feel much more coercive than voluntary.

In addition, the fact is that all of these people come from countries-many of them come from countries-with repressive regimes. They are not told that they have a right to refuse to answer certain questions. The Justice Department's guidelines expressly say that they should not be told of their Miranda right. They are not affirmatively told of their right to be represented by counsel. So, in fact, for all practical purposes, there is going to be a very coercive atmosphere.

Also on the point of coercion, we heard this morning again from the Justice Department that there is further encouragement to come forward voluntarily through the new Responsible Cooperators' Program. The problem with that program, though, is that it is very vague in terms of the assurances that are supposedly going to be made to these interviewees, and it is completely inconsistent with the actual written guidelines that the Justice Department has issued governing the immigration consequences of the interviews. The written, formal Justice Department guidelines actually expressly instruct those law enforcement officials who are conducting the interviews-I think interrogations is a more accurate term-to inquire into immigration status and if there is any reason to suspect that the person is not in compliance, to immediately contact local INS officials with the express purpose of determining whether detention would be appropriate.

So if, in fact, the Attorney General is going to reverse that policy and offer some kind of waiver of detention or deportation, then it certainly should be done through official, formal guidelines that are legally enforceable. Otherwise, this becomes much more like a sting operation, making it even more coercive and less voluntary than it was in the first place.

I would like to make one other point, and that is with respect to the various assertions we heard this morning from the Justice Department, the Assistant Attorney General, about the various constitutional rights that are being respected: we are just getting assertions to that effect. The major reason why we have been asking for information repeatedly, together with other citizens' organizations, together with members of Congress, is precisely so that we can verify that the detainees' legal rights have been complied with. Unfortunately, along with other people who have testified on this panel, we are getting information from detainees which is inconsistent with the assertions that the Justice Department has made. Specifically, on the Department's point that people are being charged within 48 hours, we are aware of three contrary cases in New Jersey, because we had been considering representing these individuals. They have all been detained for far more than 48

hours-in one case, up to 3 weeks. So we would welcome information from the Justice Department that would confirm their assertions.

And my final point, as my time is expiring, is on the point of secrecy. We heard a new rationale this morning from the Assistant Attorney General that we had never heard before; that is, that the reason for not giving the names of the Immigration detainees is because they are under seal.

One week ago today, Chairman Feingold, you asked, and I think other members of the Committee also asked Michael Chertoff of the Justice Department specifically whether there is any legal reason for not releasing those names, and he answered that there was no legal reason.

[The prepared statement of Ms. Strossen follows:]

STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL LIBERTIES UNION Chairman Feingold and other members of the Committee, I am pleased to testify before you today at this oversight hearing on the conduct of the Department of Justice in response to the September 11 attacks on the World Trade Center and the Pentagon. My name is Nadine Strossen and I am the President of the American Civil Liberties Union, a non-partisan, non-profit organization, consisting of nearly 300,000 members, dedicated to protecting the principles of freedom and equality reflected in our Constitution and civil rights laws. I am also a Professor of Law at New York Law School, teaching and writing about Constitutional Law.

Before I discuss the ACLU's concerns about the infringements on constitutional rights and civil liberties in connection with the Department of Justice's detention and questioning of thousands of individuals in the wake of the horrifying September 11 attacks, I want to note how close to home those attacks were, and how I continue to be directly affected by their ongoing impact. Both the ACLU's national headquarters and New York Law School are located within blocks of “Ground Zero." By some stroke of relative good fortune, everyone who worked at either location was spared direct physical injury or death. Nonetheless, the psychic and health traumas are deep and enduring, and both workplaces were severely damaged.

The ACLU office was closed for a week and it took several weeks before we had full use of telephone service and computers. New York Law School, which suffered more physical damage, was closed for several weeks, and in fact did not have long distance telephone service restored until just a couple weeks ago. Many studentsincluding many who had just arrived in New York from other parts of the country, for the beginning of their law school careers are still suffering severely from the psychic aftershocks. A number dropped out and moved away altogether, and others are taking some time off before returning to law school. One who never came back after witnessing the horrifying attacks and ensuing chaos, choosing to move to another part of the country, was one of my two full-time staff members. The air quality is still so bad that it is often physically unpleasant, if not adverse to health; colleagues with asthma or other respiratory conditions can't remain at the school for more than short periods.

Moreover, like most New Yorkers, I lost a friend and colleague in the attack. John Perry, who was both a police officer and a lawyer, had long been active in the ACLU's New York affiliate. He and I worked together on a number of projects, including a series of public television programs about constitutional law/civil liberties issues. So I come before the Committee today with personal losses and grief resulting from the tragedy (fully realizing how much greater and more direct were the losses suffered by so many others), and a strong desire to see that those who helped perpetrate this atrocious crime are brought to justice.

The ACLU recognizes that this investigation is an enormous undertaking and we are grateful to the thousands of people at the Department of Justice who are working hard, with the best intentions, to solve this atrocious crime and protect us from future attacks. However, the Department of Justice has assumed broad new police powers and used investigative tactics that unnecessarily violate rights with no showing that these measures increase the likelihood of capturing or deterring terrorists. Indeed, former FBI agents have publicly criticized the government's detention and questioning of thousands of individuals based on their immigration status and their national origin specifically from a law enforcement perspective. They

maintain that these dragnet tactics are ineffective at best, counterproductive at worst, in terms of the all-important goals of punishing and preventing terrorism.1 My written testimony will focus on three aspects of the sweeping detentions and questioning, which raise particular concerns about infringements of constitutional rights and civil liberties: (1) the DOJ regulation authorizing it to record confidential, privileged attorney-client communications between individuals who are being detained and their attorneys; (2) the government's refusal to disclose basic information about the people who have been detained, and (3) the questioning of 5,000 young men who lawfully entered the U.S. on non-immigrant visas, based on their country of national origin. We believe that these measures unnecessarily violate civil liberties and rights without sufficient justification in terms of advancing national security. These measures will not make us more safe, but they will make us less free.

EAVESDROPPING ON PROTECTED ATTORNEY CLIENT CONVERSATIONS

Without observing the normal notice and comment period required under the Administrative Procedures Act, Attorney General Ashcroft announced, under “emergency authority," a regulation that permits the Department of Justice to eavesdrop on confidential attorney client conversations in any case in which the Attorney General finds that there is "reasonable suspicion" to believe that a particular federal prisoner "may" use communications with attorneys or their agents "to further or facilitate acts of terrorism." The regulation requires that the Director of the Bureau of Prisons (BOP) "shall...provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys' agents who are traditionally covered by the attorney-client privilege.2

In short, the Justice Department, unilaterally, without judicial oversight, and with no meaningful standards, is to decide when to eavesdrop on the confidential attorney-client conversations of a person whom the Justice Department itself may be seeking to prosecute. This regulation applies not only to convicted prisoners in the custody of the BOP, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not yet been convicted of any crime and are presumed innocent, as well as material witnesses and individuals who are being held on suspected immigration violations and who are not accused of any crime.

This regulation is particularly disturbing because it is unnecessary. The Department of Justice already has legal authority to record attorney-client conversations by going before a judge and obtaining a warrant based on probable cause that the attorney is facilitating a crime 3. Indeed, the Supreme Court has even approved searches of an attorney's law office, provided a warrant has first been obtained from a neutral and detached magistrate. Similarly, if prison officials have reason to believe that a particular prisoner is using the mail to violate the law or threaten security, they may obtain a search warrant to read and open the mail.5

A second source of longstanding legal authority to record conversations between attorney and client, when justified by crime control concerns, is the “crime-fraud exception" to the attorney-client privilege. Attorney-client communications lose their privileged status if the government can establish that the communications were used for the purpose of facilitating a crime or perpetrating a fraud. However, it is the judge, not the Justice Department, who determines which communications fall under the crime-fraud exemption. The Supreme Court has made clear that the determination whether an attorney-client communication falls within the crime-fraud exception is to be made by courts in an in camera hearing after the government provides the court with evidence substantiating a good faith basis to believe that the exception applies.6

The Justice Department has not articulated a single reason why these two provisions in current law are insufficient to ensure that attorneys are not assisting their clients in committing crime. Indeed, during questioning before the Senate Judiciary Committee on November 27, 2001, Assistant Attorney General Michael Chertoff could not answer Senator Kennedy's question as to why the new regulation was necessary. Yet in spite of any justification for doing so, the Department of Justice has made itself the arbiter of when conversations should be monitored, taking away the authority from a neutral judge. This regulation is an unprecedented frontal assault

1 Washington Post, October 27, 2001.

266 Fed. Reg. 55062 (October 31, 2001); 28 C.F.R. sec. 501.3(d)

3 United States v. Harrelson, 754 F.2d 1153, 1168-69 (5th Cir. 1985).

4 Andresen v. Maryland, 427 U.S. 463, 480 n. 4, 96 S. Ct. 2737, 2748 n. 4, 49 L.Ed.2d 627 (1976). (approving search of law office pursuant to a warrant based on probable cause)

5 Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir. 1978).

6 United States v. Zolin 491 U.S. 554, 109 S. Ct. 2619, 2631, 105 L.Ed.2d 469 (1989).

on the attorney-client privilege and on the right to counsel and the right of access to the courts guaranteed by the Constitution.

The Supreme Court has recognized the attorney-client privilege as the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients, recognizing that sound legal advice or advocacy depends upon the lawyer being fully informed by the client. The Court stated that the attorney client privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure." Indeed, the privilege is so well established and considered such a compelling societal interest, that the Supreme Court has held that the privilege survives even after the client's death.9

Besides violating the long established attorney-client privilege, the regulation violates the Sixth Amendment right to the assistance of counsel. In the famous case of Gideon v. Wainwright, the Supreme Court ruled that the Sixth Amendment guarantees a person facing criminal charges the right to the assistance of counsel for his defense. 10 This right is not limited to the trial itself, but includes the assistance of counsel in the investigation and preparation of a defense. Indeed, the Supreme Court has recognized that denying a person access to counsel in the period prior to trial, the period most likely to be impacted by this regulation may be more damaging than denial of counsel during the trial itself.11

The essential bedrock of the Sixth Amendment right to the assistance of counsel is the ability to communicate privately with counsel. 12 Even the Justice Department recognizes the need for private attorney-client communications. In a friend of the court brief, the Justice Department wrote, "the Sixth Amendment's assistance-ofcounsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government, his adversary in the criminal proceeding." 13 Under the regulation, the defendant and his counsel are confronted not just by the possibility that the government is monitoring their communications, but by the certain knowledge that it is doing so.

Separate and distinct from the Sixth Amendment rights of persons facing criminal charges, prisoners have a constitutional right of access to the courts.14 This right is not limited to pretrial detainees facing criminal charges, or those appealing criminal convictions, but extends even to convicted prisoners who may wish to seek a writ of habeas corpus or file an action challenging the conditions of their confinement. Indeed, because a prisoner ordinarily does not have the right to vote, the Supreme Court has held that the right to file a court action might be a prisoner's remaining most fundamental right. 15 Regulations and practices that unjustifiably obstruct the availability of legal representation are invalid.16 Courts have expressly held that the right of access is the guarantee of an opportunity to communicate with counsel privately.17 Moreover, courts have specifically held that, when the individual seeking to confer with counsel is incarcerated, a prison must provide a facility for confidential attorney-client conversations. 18 Likewise, judicial rulings have held that the Sixth Amendment right of access to the courts includes the right to privacy in attorney-client mail. 19

The new DOJ regulation provides that the government will not retain “properly privileged materials" that it obtains through its monitoring. During his appearance before the Senate Judiciary Committee, Assistant Attorney General Chertoff suggested that the regulation violates no rights and causes no harm because "innocent" conversations will not be retained or used against the client and "guilty" conversations are not protected anyway. However, an individual's right to counsel will still

7 Upjohn Co. v. United States, 449 U.S. 3838, 389, 101 S. Ct. 677, 682 L.Ed.2d 584 (1981). 8 Id. (quoting Hunt v. States 128 U.S. 464, 9 S. Ct. 125, 127, L.Ed. 488 (1888).

9 Seidler & Berlin v. United States, 524 U.S. 379, 118 S. Ct. 2081, 2088, 141 L.Ed. 2d 379 (1998).

10 Gideonv. Wainwright, 372 U.S. 335, 339-40, 83 S. Ct. 792, 794 (1963).

11 Maine v. Moulton, 474 U.S. 159 170, 106 S. Ct. 477, 484, 88 L.Ed. 481 (1985).

12 United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973).

13 Weatheford v. Bursey 429 U.S. 545, 554 n.4, 97 S. Ct. 837, 843 n. 4, 51 L.Ed.2d 30 (1977) (quoting Brief for United States as Amicus Curiae).

14 Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L.Ed.2d 72 (1977).

15 McCarthy v. Madigan, 503 U.S. 140, 153, 112 S. Ct. 1081, 1091, 117 L.Ed.2d 291 (1992).

16 Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800, 1814, 40 L.Ed.2d 224 (1974).

17 Bach v. People of the State of Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974)

18 Dawson v. Kendrick, 527 f. Supp. 1252, 1314 (S.D.W.Va. 1981).

19 Muhammad v. Pitcher 35 F.3d 1081, 1083 (6th Cir.1994).