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known at times when, without going into classified matters, when we have stopped terrorist acts over the last several years, that is why we are a little bit concerned. Nobody asked us during the time we were negotiating the Terrorist Act.

Mr. CHERTOFF. Well, Mr. Chairman, I wish I could rewrite history. We cannot, and I certainly do not want to engage in any finger-pointing about things that might have been done. We face what we face now. We certainly had about as brutal a wake-up call as you can have, and I think it behooves us now to look at everything, things that we recently discovered and things we have had in hand for a long time, in reflecting on what we can do to protect Americans within the Constitution.

Chairman LEAHY. I am not taking from Senator Feinstein's time. She has probably spent as much time and effort on this whole subject as anybody on this Committee, and I yield to her.

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thanks very much, Mr. Chairman. Mr. Chertoff, I would just like to add my view that I would hope that in the future the administration would consult on these matters, particularly with the chairman and the ranking member. I think that is really important. I think one of the problems that we have is not the military commission, because most people understand why, if and when Osama bin Laden is caught, that it might not be to the Nation's security interests to have him tried in this country under our normal procedures. I think people understand that, and I think they are supportive of it.

I think one of the problems with this and that I want to ask you about is its timing because Osama bin Laden is not caught, major perpetrators are not caught. Those 19, of course, are gone from the scene, but anyone else, in terms of a major planner, is not caught. Yet the administration came forward with this order, which by my reading is a very broad order, and therefore causes a lot of concern as to who is this going to be applied to.

Why did the administration not wait until the standard of proof has been worked out, the details have been worked out, the military campaign was more advanced and then announce this? You must have some reason for announcing it at this point in time, and I would like to ask what that reason is.

Mr. CHERTOFF. Let me see, Senator, if I can allay your concern. As I understand the process, in order to invoke the President's power under military commissions, at least as it has been done based on the precedent in 1942, I guess it was, the President had to issue an order setting this in motion and delegating to the Department of Defense or, as was the case in the past, to actually generals in the field the order to then develop the appropriate procedures.

I suppose that the President could have issued the order secretly and had the procedures developed. Perhaps some might think that would have been a better approach, some might think this was actually a better approach in that it put on the table the fact that this process was going to begin. As to why it had to happen now, though, I think that, frankly, we do not know the course the war

will take. I remember several weeks ago there were predictions in the press this was going to be a very arduous campaign, we were going to get bogged down in Afghanistan. It has seemed more recently that things proceeded perhaps more quickly than we anticipated. That may yet change.

I think it is understandable, again, that one would want, at the earliest possible time, to begin the process of developing the full set of options that you might need to invoke should we encounter somebody that is a terrorist who has both violated domestic law and violated the laws of war. By publishing the order, what the President has, in fact, done is surfaced it and put it out in public so that there can be public debate about it, and of course this is while there is a process underway of having the Department of Defense develop the specific rules and procedures that will be implemented.

Let me finally say, in case I had not made it clear earlier, we should not look at the fact that the Department of Defense's involvement in this is somehow treating this as kind of an inferior form of justice. There are very capable and honorable lawyers at the Department of Defense who are working on this, who are well versed in the laws of war, who we have every reason to believe are going to be as dedicated to the Constitution as lawyers in any other department and are going to be attentive to the views of scholars and the views of members of this Committee as anybody else. So I think the process is going forward.

Senator FEINSTEIN. If I understand you then, you are saying the rationale for the timing of this was simply to give the Defense Department the time it needs to work out the standards of proof and other criteria under which the order would be carried out; is that correct?

Mr. CHERTOFF. I do not know, Senator, that I want to presume to articulate what the President was thinking. What I was trying to express was I think what was achieved initially in the order now. You needed to get the order out in order to start this process. Senator FEINSTEIN. All right. Because let us say you have 500 to 600 people now being detained, of course, no one knows who or how many or if any of those people will be subject to this order, and in Section 2, where it defines individuals subject to the order, it mentions the usual "engaged in, aided or abetted, harbored, et cetera, planned carried out," and then the next section it says, "It is in the interest of the United States that such individual be subject to this order."

What exactly does that mean and how many people under detention at the present time do you have reason to believe would be subject to this order?

Mr. CHERTOFF. Let me, Senator, direct your attention as well to Section 4 because I think it is important to read the order in its entirety.

As I understand the order, the order applies to people who could be prosecuted in a military commission for a war crime. That means, for example, that people who can be indicted for immigration violations or false documentation are simply not eligible under this order. They are not people who committed war crimes, and

therefore they will be dealt with if they have committed domestic crimes in the ordinary way that people under Article III are.

In order to be full within the scope of this order, you would have to be someone who could be tried for committing crimes against the laws of war; meaning being an enemy belligerent who has engaged in or supported hostilities against the United States. So that is a fairly high standard, I would think, and it does not apply to people who are in custody for garden-variety criminal offenses.

In terms of asking how many people are currently in custody who could conceivably eligible for this order, I think I am limited because I do not think I am in a position at this point to identify the state of our investigation with respect to particular individuals or to disclose whether there is anybody we have identified that we have in custody that is someone that we would consider to be an active terrorist who has violated both domestic terrorism laws and the laws of war.

So I do not know that I can give you that, but I can tell you that people who are found in the commission of garden-variety crimes are not people who violated the laws of war, and therefore by its terms would not fall under this order.

Senator FEINSTEIN. Just one quick follow-up. Is it fair to say that there are some now in detention that would be subject to this order?

Mr. CHERTOFF. Senator, I do not feel that I can, at this point in time, make a statement as to the status of anybody in terms of whether we have a level of proof about their activities that would rise to what you would need in order to prosecute them for a war crime.

Senator FEINSTEIN. Thank you.

Thanks, The CHAIRMAN.

Chairman LEAHY. Perhaps the time to do this would be after the Attorney General's testimony, but if there are issues that should be addressed only in a closed session, and if the Senator from California wants one, I am sure that the Senator from Utah and I requested under the normal procedures this Committee does.

Senator McConnell?

Senator MCCONNELL. Thank you, Mr. Chairman. This has been a very interesting hearing. I want to congratulate Mr. Chertoff on an excellent presentation.

We have been talking about what kind of due process rights we are going to provide to a universe of people who I believe, am I not correct, are 100-percent noncitizens?

Mr. CHERTOFF. That is correct.

Senator MCCONNELL. So this whole discussion is about a universe of people who are not citizens of the United States, and I think it is important to remember that.

Let us then confront a potentially perverse result that could occur. An American serving in the United States Army in this country could conceivably end up with fewer safeguards because he would be subject to a military trial; would he not, Mr. Chertoff?

Mr. CHERTOFF. My understanding is, yes, under the Uniform Code of Military Justice.

Senator MCCONNELL. Right. So you could have the perverse result in which an American citizen who happened to be a member

of the U.S. military being tried in a military court, not a military commission, such as we are talking about here, but a military court having fewer sort of generally recognized due process safeguards than a foreign terrorist captured either here or overseas and brought here and tried, such as the terrorists were tried after the 1993 World Trade Center bombing; is that not correct?

Mr. CHERTOFF. Well, Senator, I am not an expert in military justice. It is my understanding, although the system of rights under the Uniform Code is different, it actually does afford servicemen a considerable degree of protection in terms of their rights. There are some differences. I would not want to, though, suggest that it is an inferior form of justice. It is a different form of justice.

Senator McCONNELL. But many would suggest that the reason for having a military tribunal in the first place is that the procedures are somewhat more efficient, shall we say, and maybe

Mr. CHERTOFF. There are protections, for example, for handling classified evidence I think that are somewhat different than

Senator MCCONNELL. Let me try again. Would it be correct to assume that it is possible, under the scenario that seems to have been suggested here this morning, that you could have a foreign terrorist tried in a civilian trial in the United States with a lesser standard of what is generally believed to be due process than an American citizen serving in the U.S. military here? For example, they do not get a jury trial.

Mr. CHERTOFF. Well, again, and I do not want to venture into talking about the Uniform Code because I really do not know very much about it, my understanding is in some circumstances you do get a jury.

Senator MCCONNELL. Let us assume that you do not get a jury trial in the military

Mr. CHERTOFF. Then that would be a

Senator MCCONNELL. Just assume that for the sake of discussion. Would it not be safe then to conclude that an American citizen in the military who has to go to trial without a jury would have less sort of generally recognized due process rights than a foreign terrorist brought to the United States and tried in a regular civilian court?

Mr. CHERTOFF. I think, if one were to assume that is true, then it would be the case that the terrorist would have an additionalSenator MCCONNELL. Which is totally, let me suggest, is a totally perverse potential result of what we are discussing here this morning, completely absurd. It would be further incentive to foreign agents to be sure they got caught here, would it not?

Mr. CHERTOFF. Yes. I think there is no doubt that one thing that this order operates to do is remove the assurance that a terrorist might have that there is a safe haven. The last thing we want to do is create the perverse incentive for terrorists to feel they ought to come into this country, because then they are home free, and get a higher measure of protection than they would get if they are caught in the field.

Senator MCCONNELL. Which leads me to my next question. In effect, we would have the potential of a repeat of the O.J. Simpson trial, complete with grandstanding by defense lawyers, in a trial of Osama bin Laden or his henchmen, with the potential to be set

free. Because, let us just take a hypothetical, let us assume that the case was about an anthrax attack, that there was not a pristine, perfectly established chain of custody for anthrax, you could have these people being set free.

In fact, what I would like you to do is just sort of give us a litany of things that could go wrong that would compromise our effort to fight terrorism if such trials were held in a U.S. civilian court, if you could just sort of give us a litany of all of the things you can think of that could go wrong that would compromise sources, methods, that allow us to conduct a war on terrorism, hopefully, in an effective way.

Mr. CHERTOFF. Well, let me begin, Senator, by saying this. I do not want to be taken as suggesting that I have any lack of faith in the ability of our domestic criminal courts to trial terrorist cases. I have to say that the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.

That being said, we are in a different situation, both as to the scope of the challenge we face and as to the nature of the challenge we face. There are certain considerations that in the individual case could wisely counsel for the President not to pursue the domestic criminal route. Certainly, for example, we would not want to bring people into this country in significant numbers to be present in American cities where they pose a danger to the populace. It is a fact that in past cases involving terrorists tried in this country, the judges have had to be under guard, and some of that requirement for security

Senator MCCONNELL. And what about the jurors? What about the threat to jurors?

Mr. CHERTOFF. Jurors as well, and that has persisted for a period of time, even after the trials are over. It may not be fair—

Senator McCONNELL. What about the reporters covering the trial?

Mr. CHERTOFF. Well, I probably would not venture there with the reporters.

Senator MCCONNELL. And the judge.

Mr. CHERTOFF. But the judges, there are judges who are still under protection as a consequence of that. So, plainly, the President could consider those factors.

It is the case that up to now we have been successful in dealing with classified information, but clearly in the current environment, we may have some situations where there are individuals that we need to prosecute, where a large bulk of the information is classified, and we would not want to be in the position that we are in the domestic courts of having to drop the case because we cannot sacrifice confidentiality.

And there may be technical problems, in some instances, given the far-flung nature of the investigation and the fact that we are accumulating evidence on the ground, presumably, in Afghanistan, where the need to have somewhat more streamlined procedures would commend itself to the President.

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