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order, was there consultation with your Department on whether there was a need for an express authorization by Congress to do this?

Mr. CHERTOFF. Again, I am not in a position, both because of lack of knowledge and also because I do not want to get into confidential advice given to the President by his principal officers.

There was consultation with the Department of Justice, but I think the details are something I am not in a position to get into. Senator SCHUMER. Let me then ask you a judgment question from your many years in various places in the Justice Department. I thought that the outcome of the antiterrorism debate on the antiterrorism bill was a good one. I thought there was give-andtake. There was public vetting. There was no attempt by those who did not completely agree with the initial proposal by the administration to be dilatory, but rather to make some changes, and I was sort of in the middle. There were some places where I was closer to the Attorney General and the Justice Department, there were some places where I was closer to our chairman and others.

But one thing I am convinced of, that having a debate, having a discussion produced not only a better product, but something that was regarded as more legitimate, something that created greater consensus, something that not only people in this country, although that is first and foremost, but even people around the world could say this worked out pretty well, and the ultimate product to me was a good one. I did not vote for it reluctantly. I thought it was a good product.

Why would that not be a better process, in terms of some of the things we are discussing here, particularly the tribunals? Would it not be better for the administration to bring a proposal before Congress, to not have Senators Leahy and Hatch have to make the request, make the request, for this to happen? We are going to have other needs and other changes. We, certainly, if I had to pick a word, it would be "recalibration," we do have to recalibrate, in every aspect of American life and in this one, too, where you balance liberty and security.

Why is it not better to vet these things through a discussion process that we usually have through the Congress, rather than just issue fiats for the sake of a better product, for the sake of legitimacy, for the sake of the constitutional checks and balances which have seemed to serve us so well for these 200-some-odd years?

Mr. CHERTOFF. Senator, I think all I can say is, again, the President's order is the process by which he initiates the use of this time-tested constitutional power. It, by its very terms, it is not the end of the process; it is the beginning of the process, and it directs the Department of Defense to take the responsibility to now flesh it out.

I am confident that the people who are doing this are going to be receptive and interested in all of the relevant information, all of the relevant considerations in putting this together. Of course, the Department of Defense also appears before Congress and has interaction with Congress as well. So I do not want to presume to predict exactly the way in which the Department of Defense is going to go about doing its business, but I think that, again, we have seen what the President has done has been to initiate this

process, to authorize it to be taken underway, but it is not a completed process yet.

Senator SCHUMER. So you believe there will be more consultation than say there was up to now?

Mr. CHERTOFF. I do not know that I am in a position to speak for the Department of Defense. I can tell you where the situation is now. The Department of Defense obviously interacts with Congress as well, but it is a matter that has properly been committed to their discretion because, after all, we are dealing with a power that the President is exercising that comes from his status as Command-in-Chief and not his status as head of the law-enforcement function.

Senator SCHUMER. Although I would say some of these areas do shade into both. I mean, you have talked with some others, not just on the tribunal issue, but on others, where they are law-enforcement functions, and there seems to have been the same sort of "We will figure it out quietly behind the current, and then we will issue something."

I would just urge greater consultation with us for the good of the country and for the good of the product.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator Schumer.

In fact, I could not help but note, Mr. Chertoff, when you say that there is nothing in the President's order that the military commission be held in secret, I would disagree. It gives the Secretary of Defense the authority to keep the proceedings secret if he wants. The Justice Department is briefed by saying the proceedings may be completely secret, even with no notification to Congress. I believe it was in the New York Times, where a military official as quoted as saying, "The proceedings may be kept from the public view for years, even decades."

I mean, it is the kind of things, your own Department's briefings to us, the way it is worded, these are the reasons why there has been concern about the secrecy aspect. Whether the secrecy is a good idea tactically or not, the fact is that most people here feel that that is a plan that they may be kept secret and may be kept secret, as they have said, even for decades.

Mr. CHERTOFF. Mr. Chairman, again, I can only rely upon the text of the order. The order plainly directs the Secretary to consider the conduct, closure of an access to proceedings in a manner consistent with the protection of classified information. But as I observed earlier, I think the President's counsel has indicated a general preference to be as open as one can, given the exigencies of the circumstances.

Chairman LEAHY. You should talk to those who speak about it being decades and also talk to those in your own Department who say it could be kept in secret for a long, long, long time.

Senator Hatch, did you have anything further or should we go to the next panel?

Senator HATCH. I think we should go to the next panel because we have got a number of very important witnesses. I just want to compliment you, Mr. Chertoff. I do not think anybody could have been any more straightforward and articulate about these issues than you. I believe that we are very fortunate to have you in the

position that you are in. I just want to compliment you for all of the hard, difficult and good work that you have done. It has meant alot to me, and I think it means a lot to our country. Thank you so much.

Mr. CHERTOFF. Thank you.

Thank you, Mr. Chairman.

Chairman LEAHY. You can go have your birthday lunch now.
Mr. CHERTOFF. I will. Thank you very much.

Chairman LEAHY. Thank you for coming.

Just so we understand, all members understand, please, give to either Senator Hatch or myself, any follow-up questions which will be delivered to Mr. Chertoff by the end of business today, and we would ask you to respond to those by the end of the week, so that we can have them in hand and prepared prior to Attorney General Ashcroft next week.

Mr. CHERTOFF. I will do that.

Chairman LEAHY. I thank you.

Mr. CHERTOFF. Thank you, Mr. Chairman.

Senator SPECTER. Mr. Chairman?

Chairman LEAHY. Yes.

Senator SPECTER. I was asked if I wanted to have a second round, and I said yes.

Chairman LEAHY. Oh, I had asked the ranking member if he wanted further.

Senator HATCH. If I could, I really believe that we need to get to that next panel. I know that they are pressured on their time. That is one reason why, you know, I do not make the determination, but I suggested that we should move to the second panel. Senator SPECTER. Well, the second round is 5 minutes.

Chairman LEAHY. If the Senator from Pennsylvania wants 5 minutes, it is fine with the chairman.

Senator SPECTER. Yes.

Chairman LEAHY. Go ahead, but let us see if we can keep it 5 minutes.

Senator SPECTER. Mr. Chertoff, as a follow-up to the questions that I had posed earlier, you have said that the President is relying on his Article II powers in the promulgation of the executive order, and he does refer to the authority, as Commander-in-Chief, which obviously is a very generalized authority.

The Congressional Research Service, which has done extensive research on this question, comes down flatly with the statement that the Constitution empowers the Congress to establish courts with exclusive jurisdiction over military offenses, and cites as the authority Clause 14 of Section 8 of Article I, which says that "the Congress has the power to declare war, grant letters of marque and reprisal and make rules concerning captures on land and water." And there is the express grant of authority for Congress to make the rules concerning captures on land and water, which would certainly encompass everybody in the military tribunal.

In the President's executive order, he then cites specific statutory authority, which I quoted earlier, saying that unless impractical, the rules in the United States District Courts, as to evidence and law shall apply.

Now, as a matter of constitutional interpretation, you say that the generalized authority as Commander-in-Chief gives the President the authority over the Congress on this issue in the light of the specific authorization of Article I, 8, 14?

Mr. CHERTOFF. Actually, Senator, what I think I am saying is that we do not need to get there. Because, as I understand Section 8-21 of Title 10, Congress chose not to occupy the field, so to speak, and create exclusive jurisdiction, whether it could do so or not is a matter I understand has been debated by various people. Senator SPECTER. Where do you derive the conclusion that Congress chose not to occupy the field?

Mr. CHERTOFF. Section 8-21 is entitled, "Jurisdiction of Court Martial Not Exclusive," and says, "The provisions of this chapter conferring jurisdiction upon court martial do not deprive military commissions, ellipsis, of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions."

Now that provision was addressed by the Madsen case by the Supreme Court at 343 US, at Page 352, where the Court indicated that that language preserved for such commissions the existing jurisdiction which they had over such offenders and offenses.

Senator SPECTER. But, Mr. Chertoff, that case does not involve the constitutional authority of Congress. When you talk about occupying the field, you are talking about legislative intent to have exclusive control over a subject or whether the States may legislate or whether there may be other authority, but occupying the field does not go to constitutional authority. The Constitution is fundamental and is not a matter of legislative interpretation as to what is occupying the field.

Mr. CHERTOFF. I think, to try to be a little more clear, Senator, what I am saying is that, regardless of how one weighs the debate over whether the President could authorize these tribunals, even in the face of an explicit grant of exclusive jurisdiction to the Federal courts, and I understand there is a debate about that both ways, and I do not portray myself as an expert in that, the Courts have interpreted this section as indicating that Congress has not reserved exclusive jurisdiction over military—

Senator SPECTER. But you are talking about a section of a statute

Mr. CHERTOFF. Correct.

Senator SPECTER. You are not talking about a constitutional provision and the application of occupying the field.

Mr. CHERTOFF. I think what I am suggesting

Senator SPECTER. Let me just-I think, really, the answer may be in a little comity back and forth to try to work it out. We want you to have the authorities you need, but where Congress has said that the regular rules apply unless it is deemed impracticable, I think that is what we need to get to.

In your statement where you talk about the need for secrecy, if there were will be a disclosure of matters, that is a cogent reason if it comes up in a specific case.

Let me come back to a question which I have broached, but there was not time, on the Attorney General's rule establishing detention. Did the Attorney General meet the statutory requirements for

an opportunity to comment on his rule? He put it into effect before it was even published in the Federal Register. Was there compliance with the provisions that there had to be an opportunity, a notice and an opportunity for comment?

Mr. CHERTOFF. Is this the rule with respect to the monitoring of attorney-client communications?

Senator SPECTER. No, it is the rule with respect to detainees, which was put into effect, which was written on the 26th, put into effect on the 29th, and not even published in the Federal Register until the 31st, without any opportunity for comment. I just want to know if the Attorney General complied with the applicable law on that subject.

Mr. CHERTOFF. I have to say, Senator, not being familiar with the promulgation and the process by which the rule was promulgated, I would certainly be happy to get back to you with an answer to that question.

Senator SPECTER. I would appreciate it if you would. The red light is on, and I know we have to move on. So, if you would provide that in writing to the Committee, we would appreciate it. Mr. CHERTOFF. Sure. I would be happy to.

Senator SPECTER. Thank you very much.

Mr. CHERTOFF. Thank you.

Chairman LEAHY. Thank you. Thank you, Senator Specter.
Thank you, Mr. Chertoff.

Mr. CHERTOFF. Thank you, Mr. Chairman.

Chairman LEAHY. If we could bring the next panel up, please. They have been waiting very, very patiently. We have tried to accommodate the administration and my colleague, Senator Hatch, by having Mr. Chertoff first, and it was worthwhile.

We will put in the record a number of press accounts and also leave the record open for any statements of any Senators.

[The prepared statements of Senator Grassley and Senator Thurmond follow:]

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA

Thank you Mr. Chairman for holding this timely hearing.

The past two and half months since September 11th have been trying times for all Americans. At the same time, we are a nation united against the terrorist threat-both at home and abroad-with greater strength and resolve than at any time in our history. I had a chance to see this first hand during the past Thanksgiving break in meetings with first responders back home in Iowa. In these meetings with firefighters, police, emergency and HAZMAT officials, and public health officers, there was a broad consensus that the battle against terrorism be waged aggressively, but that we do so without sacrificing those principles that make our nation unique.

That's why we made every effort to ensure that the antiterrorism proposal submitted by the Administration and the Department of Justice fit well within the bounds of the Constitution. After all, these are the values that we hold dear and what defines us as a nation. Throughout this process, the Attorney General and the Department of Justice worked with both sides of the aisle to produce a consensus package that would give our law enforcement community the tools they need to keep this nation safe against terrorists. That bipartisan package, the USA/PATRIOT Act, passed overwhelmingly by a vote of 98-1.

Since then, the Administration and the Attorney General have sought to further strengthen their battle against terrorism with additional law enforcement tools. Many, including the Chairman, have questioned these initiatives.

I understand and appreciate those concerns. It's the job of Congress, and this Committee, in particular, to ask the questions about the appropriateness of these

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