potential to monitor communication between attorneys and clients, if bin Laden were in jail and he had a friendly attorney, he could actually conduct terrorist operations from a Federal jail; is that not correct?

Mr. CHERTOFF. That is correct, Senator, and I point out that it is not only in the case of an attorney who is willingly helping, but even an attorney unwittingly could be used as a tool for communicating.

Let me, if I can just take a moment to read from again the manual. This is from Lesson 18. They actually have these things in lessons. That instructs that if an indictment is issued and the trial begins, the member has to pay attention to the following rules. And it talks about taking advantage of visits to communicate with brothers outside prison and exchange information that may be helpful to them in their work outside prison.

Senator SESSIONS. Wait a minute. This is bin Laden's manual? Mr. CHERTOFF. This is bin Laden's manual. This is what they instruct their terrorists. This is a kind of teaching tool for terrorism. He says the importance of mastering the art of hiding messages is self evident here. So they are trained specifically in how to use the ability to communicate when they are in prison in order to further the goals of the terrorist organization, and woe until us if we do not learn the lessons from what they are teaching.

Senator SESSIONS. Well, now you have said that you have identified, what was it, how many thousand people in prison?

Mr. CHERTOFF. 158,000 approximately, I think.

Senator SESSIONS. And 16 individuals that might be subject to this kind of supervision or monitoring; is that correct?

Mr. CHERTOFF. That is correct. And I should make it clear that of the 16, 12 are terrorists and 4 are under these special administrative measures for espionage.

Senator SESSIONS. And so I think-and to your knowledge, none of that has occurred as of this date?

Mr. CHERTOFF. We have not, as of this date, actually initiated any monitoring pursuant to this order.

Senator SESSIONS. Well, I would just say this. I think you should be very careful not to overuse that privilege, but I think it would be a colossal error of monumental proportions if we were to allow a terrorist prisoner to be able to plan and conduct and order and direct additional terrorist attacks against people of the United States, when we have I think a legitimate basis for monitoring that. So I think you should do that. I hope it should not be abused, and I am glad to see that you have so few of defendants being looked at in that regard.

Mr. Chairman, my time has expired. I thank the Chair. I believe Mr. Chertoff's testimony has gone a great way to allay the concerns that many have expressed.

I thank you for it. I thank you for what the Department of Justice has done, the tireless effort, the many hours long days that you have put in, and Attorney General Ashcroft has, and we have not had an additional terrorist attack in this country to our knowledge, and I am confident had you not moved aggressively, that we may well have had additional Americans dead, maimed and wounded in

this country as a result of further terrorist acts. I salute you and thank you for your efforts.

Mr. CHERTOFF. Thank you, Senator. And I would be remiss if I did not make it clear this is really based on the fine work of all the men and women of the Department of Justice, including the FBI as well as state and local law enforcement and the other agencies of the Federal Government who are working tirelessly to defend this country.

Chairman LEAHY. Thank you, Mr. Chertoff. When you do go back to the Justice Department, you can assure them that while it might have been doubtful before, you do have Senator Sessions on your side in this regard.

[Laughter.]

Chairman LEAHY. We will take a 5-minute recess, and then we will go to Senator Durbin and Senator Kyl.

[Recess.]

Chairman LEAHY. Mr. Chertoff, your birthday celebration just never stops. [Laughter.]

I appreciate the one musician among us in not leading a resounding chorus of happy birthday.

Senator Durbin, just so everybody knows, it will be Senator Durbin, then Senator Kyl, Senator Feinstein, Senator McConnell, and then Senator DeWine, Senator Grassley.

So, Senator Durbin, please go ahead.

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS

Senator DURBIN. Thanks, Mr. Chairman.

Mr. Chertoff, thank you again for being here.

I think it is fairly well known across this country that this Congress, since September 11th, has really made an extraordinary effort to cooperate with the President and the administration in this war on terrorism in so many different ways, providing the President with the resources and the authority with strong bipartisan

votes.

I can tell you that the modestly titled USA PATRIOT Act was a struggle for some, including myself, to try to find the right balance between our constitutional responsibilities and our responsibility to protect and defend this nation. And I thought that after lengthy deliberation and refinement that we struck that balance, that we found an appropriate way to give new authority, appropriate authority to the Department of Justice and the President to deal with terrorism. I voted for it. Virtually all of my colleagues, but Senator Feingold, whom I respect very much for his own views on the subject, felt the same way. But it was a struggle. It was not easy.

And I think that is why you perhaps heard some frustration and disappointment from the Judiciary Committee today about the announcement concerning military commissions or military tribunals, because it seems to us that this is a rather significant departure from what we considered to be the opening statement here of our cooperation between the Legislative and Executive branch in dealing with terrorism. We felt that we had been asked for and had given to the administration the tools they needed to fight ter

A Chairman. my me has expired. I thank the Chair. I believe Mr Cheral's testimony has gone a great way to day the concerns that many have expressed

I thank you for it. I thank you for what the Derartment of Justice has done, the tireless effort, the many hours long days that you have put in, and Attorney General Ashcroft has, and we have not had an additional terrorist attack in this country to our knowledge, and I am confident had you not moved aggressively, that we may well have had additional Americans dead, maimed and wounded in

this country as a result of further terrorist acts. I salute you and thank you for your efforts.

Mr. CHERTOFF. Thank you, Senator. And I would be remiss if I did not make it clear this is really based on the fine work of all the men and women of the Department of Justice, including the FBI as well as state and local law enforcement and the other agencies of the Federal Government who are working tirelessly to defend this country.

Chairman LEAHY. Thank you, Mr. Chertoff. When you do go back to the Justice Department, you can assure them that while it might have been doubtful before, you do have Senator Sessions on your side in this regard.

[Laughter.]

Chairman LEAHY. We will take a 5-minute recess, and then we will go to Senator Durbin and Senator Kyl.

[Recess.]

Chairman LEAHY. Mr. Chertoff, your birthday celebration just never stops. [Laughter.]

I appreciate the one musician among us in not leading a resounding chorus of happy birthday.

Senator Durbin, just so everybody knows, it will be Senator Durbin, then Senator Kyl, Senator Feinstein, Senator McConnell, and then Senator DeWine, Senator Grassley.

So, Senator Durbin, please go ahead.

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS

Senator DURBIN. Thanks, Mr. Chairman.

Mr. Chertoff, thank you again for being here.

I think it is fairly well known across this country that this Congress, since September 11th, has really made an extraordinary effort to cooperate with the President and the administration in this war on terrorism in so many different ways, providing the President with the resources and the authority with strong bipartisan votes.

I can tell you that the modestly titled USA PATRIOT Act was a struggle for some, including myself, to try to find the right balance between our constitutional responsibilities and our responsibility to protect and defend this nation. And I thought that after lengthy deliberation and refinement that we struck that balance, that we found an appropriate way to give new authority, appropriate authority to the Department of Justice and the President to deal with terrorism. I voted for it. Virtually all of my colleagues, but Senator Feingold, whom I respect very much for his own views on the subject, felt the same way. But it was a struggle. It was not easy.

And I think that is why you perhaps heard some frustration and disappointment from the Judiciary Committee today about the announcement concerning military commissions or military tribunals, because it seems to us that this is a rather significant departure from what we considered to be the opening statement here of our cooperation between the Legislative and Executive branch in dealing with terrorism. We felt that we had been asked for and had given to the administration the tools they needed to fight ter

rorism. And then, to the surprise of many of us, came this new request for perhaps not a request, but an announcement about military tribunals and commissions.

Let me tell you three specific areas of concern that I have on this issue. Number one. After the painstaking process which we went through for the antiterrorism legislation, we arrived at some very carefully worded definitions. The President's order relative to military tribunals virtually starts anew when it comes to many of these same terms. You have addressed your testimony, as you should, to the whole question of terrorism. The antiterrorism bill defines terrorism, goes through and catalogs the Federal laws that will be characterized as terrorism, an exhaustive list. And yet when we look at the President's order, it is a much different approach as to what will be considered terrorism when we are engaged in military tribunals.

We also have a standard that is in the President's order. It refers to a quote, "reason to believe standard", close quote, and that is not defined and it is not a common term of law so that you might be able to find precedent to explain what it means. So for those of us who felt that the process resulted in a good piece of legislation which we could support even with some reluctance, but realizing we need it to protect America, this new approach breaks new ground in definition on critical areas. What is terrorism? What is the standard for the President to convene a commission or tribunal?

Secondly, I had the good fortune to meet with now the U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, who was a prosecutor in the Southern District of New York against the Al Qaeda terrorists, and a very well versed prosecutor on the subject. He talked to me about his successful experience about prosecuting terrorists for the embassy bombings and his involvement in the World Trade Center bombing in 1993.

The reason I think back on that is that at that point in time, facing the loss of American life from terrorism, we felt, as a Government, that our courts and our laws were adequate to the need to prosecute even those overseas who had been extradited to the United States. And now we have a new approach. Now, I will concede in a second that what happened on September 11th was a much different magnitude. But if you could please draw a distinction for me between what was clearly adequate and successful in the past in prosecution that the administration now believes is inadequate, even with the new antiterrorism law.

The third point raised by Senator Leahy, and one that troubles me is this. As a member of the Intelligence Committee I know that probably the greatest successes we have had since September 11th have not been reported. We have an exceptional cooperation now from countries around the world in gathering intelligence on terrorism. For the Spanish Government to announce to us that they will not extradite terrorists who could be of value to us in solving any of the mysteries or disarming the cells or finding the sleepers in the United States because of military tribunals and the death penalty, raises serious questions in my mind as to whether or not we are helping ourselves by adding a military tribunal into this mix.