policies. So, I'm pleased that we are having this hearing today to make sure that we appropriately balance the real and pressing need for enhanced national security after the September 11th attacks with the protection of our civil liberties.

I look forward to today's testimony.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

Mr. Chairman:

I appreciate your concern for the protection of civil liberties while our Nation fights a war against terrorism. We must not violate our Constitution in the name of extinguishing terror, or we will endanger the very freedoms that make our country great. We must not sacrifice our liberties in attempting to bring our enemies to justice. In our struggle against terrorism, it is important that we protect America by enacting reasonable and measured law enforcement initiatives that also respect individual liberties.

The Bush Administration is employing a variety of tools in the fight against terrorism, such as the use of military tribunals and the current detention of suspected terrorists. Some groups claim that these tools are unconstitutional. However, I believe that the Bush Administration is pursuing initiatives that are consistent with the Constitution and do not endanger American freedoms. When exploring the constitutionality of any law enforcement initiative, it is important to ask whether the proposal is reasonable. I think that these hearings will bring to light the reasonableness of the Administration's actions.

President Bush's military order provides for the trial of foreign terrorists by military commissions. Not only is the President's order historically based, but it was made pursuant to current law. Military commissions are rooted in American history, from the trial of deserters in the Mexican-American War to the trial of President Lincoln's assassins. Moreover, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court unanimously upheld President Roosevelt's use of a military commission to try Nazi saboteurs during World War II. In addition to historical precedent, Congress has approved the use of military commissions under the law of war (10 U.S.C. $821).

It has been suggested that the President does not have authority under 10 U.S.C. § 821 because we are not officially in a state of war. However, the murderers who flew commercial airliners into the World Trade Center towers and the Pentagon perpetrated nothing less than acts of war. The unimaginable destruction in New York and the damage done to the symbol of American military power are sobering reminders of the acts of war committed by terrorists.

At this moment, American forces are engaged in a war against terrorism. It is a unique war because al Qaida is a loosely organized group spread throughout many different countries. In these unique circumstances, it is unreasonable to insist that an official declaration of war be made because the enemy is a shadowy network of international terrorists.

Military commissions are also good ideas as a matter of policy. These commissions would allow for the use of classified information. If such information were easily disclosed in a civilian court, intelligence operations could be seriously endangered. Military tribunals would also better protect witnesses and other trial participants. Additionally, more flexible rules would allow for the use of evidence collected during war. Rules governing the gathering of evidence for use in trial courts in the United States do not necessarily translate to evidence gathered on the battlefield.

Another action taken by the Bush Administration is the current detention of alien suspects. While it is important that we release individuals in a timely manner, we must also take national security concerns into account. In Zadvvdas v. Davis, 121 S. Ct. 2491 (2001), the Supreme Court held that aliens under a final order of removal from the United States may be held for up to six months, and that longer periods may be justified in certain circumstances. The Court also noted that there may be special circumstances justifying the detention of especially dangerous individuals in cases presenting national security implications. In my view, deference should be given to the executive branch in situations involving national security. While we should continue. to practice oversight, we should not jump to hasty conclusions. It is important to note that because the terrorist attacks occurred in September, no person has been held for the presumptively reasonable time period of six

months.

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Mr. Chairman, I am pleased that we are carefully considering the President's efforts to fight terrorism. While I think that much of the criticism directed towards the Administration is inaccurate, it is important that we fully discuss these issues. I think that the Administration has done a good job of developing ways to bring terrorists to justice, and I find them to be reasonable tools in the fight against international terrorism. I hope that my colleagues will join me in supporting the Administration's efforts to combat terror.

Chairman LEAHY. We have on the panel former Attorney General William Barr. Mr. Barr it was, as always, good to be with you last week. I enjoyed our conversations and a chance to get caught up on a lot of subjects; and Professor Heymann, who is the former Deputy Attorney General of the United States and one who has spent a lot of time in this room before the Committees; former Attorney General Bell from Duke University; Scott Silliman, who is no stranger to the members of this Committee. He is the executive director of the Center on Law, Ethics and National Security, Duke University; Kate Martin, who is the director of the Center for National Security Studies; and Neal Katyal, a visiting professor, Yale School, who is now a professor of law at my old alma mater, Georgetown.

Attorney General Barr, if you would like to—first off, I want to thank all of you for staying. This has been a long morning. Those of you who have been in the administration know that when we accommodate the requests of the administration and the senior member of the President's party to have an administration witness come, that they get a chance to go a little longer than we thought. General Barr, good to have you here.

STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY

GENERAL OF THE UNITED STATES

Mr. BARR. Thank you, Mr. Chairman, Senator Hatch.

I would like to briefly touch on the legality or the constitutionality of the military tribunal order of the President, and then recognize that there are really two issues beyond that, and that is whether it is prudent and advisable in a particular circumstance to use those procedures or whether greater rights and procedures should be given, in a particular case, given to a foreign national who is at war against the United States.

And then, finally, the so-called civil rights concerns, and the understandable concerns that may emerge if these things were to be applied to people within the United States.

I think there is no doubt that the President was well within his constitutional authority to promulgate this order, as his predecessors took similar steps. It is important to recognize we are talking here about two distinct realms.

There is a fundamental difference between the Government, when it is acting in a law-enforcement capacity, that is, when it is acting within the framework of civil society, regulating civil society, setting up procedures, processes, rights, levels of appeal, and so forth, the rules of the game within society, and the realm, when the Government is acting in national defense, that is, when that society comes under attack by foreign adversaries.

They are wholly different, and the relationship between the Government and the individual changes radically once there is a state of armed conflict from a foreign or armed adversary. In that case,

where there is a state of armed conflict, as the Supreme Court has recognized, we are now dealing with the national defense power of the United States, the law of war applies and tribunals are part of the war power.

Whether or not a combatant is engaged in military operations or has been captured, the relationship between the sovereign Government and that individual is the relationship of us exercising national defense power against that individual. That is what military tribunals involve, the exercise of military or, that is, the war power as to those individuals. It is not the judicial power of the United States.

Now no war need be declared for this power to come into being. It is an adjunct of any lawful use of force by the Government. And the Supreme Court and Congress have recognized repeatedly that the country can exercise its powers of national defense and engage in armed conflict without a formal declaration of war. And, indeed, from the very foundation of the Republic, it was recognized, particularly where the United States is attacked and the President is responding to attacks, there is no requirement for a declaration of war for there to be the lawful use of the war power.

The question has been raised whether Congress has to authorize the use of military tribunals. The answer is obvious. Congress does not have to authorize it because it is an incident of the war power. As the Supreme Court has repeatedly said, it is just like the President moving a division from Point A to Point B. It is incident to the war power just like hearings and subpoenas are incident to the legislative power, and therefore it does not require any specific authorization.

So, even if there was nothing in the U.S. Code or in the laws, the Commander-in-Chief could constitute military tribunals to try cases that arise under the laws of war. But, of course, the fact is that Congress has sanctioned them and specifically recognized their jurisdiction in 10 U.S.C. 1821.

Now one of the problems arises because people naturally feel concerned when these tribunals would be used against people in the United States. I think there seems to be a visceral understanding that overseas, where we apprehend people on the battlefield, it does not make much sense to bring them back and try them in our civil courts for violations of the laws of war, but there seems to be a concern that, gee, what happens when someone comes into the United States?

From a legal standpoint, there is no geographical limit to the principle that when the Government is defending the country and exercising its war powers against armed foreign nationals who are waging war against the United States, it does not matter whether those nationals are overseas or where they have successfully entered the United States.

The last time that an armed adversary came into the United States abiding by the rules of war was, I think, in 1814, when the British came in their red coats openly bearing arms. They were not entitled to our constitutional protections. They are not entitled to due process. Their rights as combatants come from the laws of war, not our Constitution.

The fact that a foreign adversary enters the United States successfully does not mean that all of a sudden he becomes invested with constitutional rights. If he robs a bank, he breaks the civil order and we proceed against him, he gets the same rights as a citizen. If he is bearing arms against the United States and waging war against the United States, he gets no right under the Constitution. His rights arise under the laws of war.

Now here we have a different kind of entry, surreptitious entry by an enemy, which is itself a violation of the laws of war. They did not come in uniform, they did not come openly bearing arms, and they came with the intent of destroying civilian targets. For the same reason that a uniformed adversary who sets foot in this country is not entitled to constitutional protections, the same is true, if not more so, for someone who violates the laws of war by entering surreptitiously, which the Supreme Court has repeatedly held and has averted to numerous times.

Nevertheless, that does raise the issue, when you start using military tribunals against people who are present in the United States, there may be an understandable concern that, in theory, this is a device that could be abused and taken too far. The question really is, is it being taken too far here, and there is no evidence at all that it is. In fact, we have a very clear objective, events that establish that this is not being used as a pretext.

We are in a very dangerous situation of unprecedented and kind of war we are waging. It has to be predicated on the President's determination that this is triable, these individuals have committed violations of the law of war that are traditionally triable in military tribunals, it applies only to noncitizens, and notwithstanding some of the hysterical commentary, the Supreme Court has not been stripped of habeas corpus jurisdiction over individuals who are in the United States. This language was in President Roosevelt's executive order. It follows President Roosevelt's executive order and Quirin shows that the Supreme Court could exercise habeas corpus to ensure that there was no abuse.

Thank you.

[The prepared statement of Mr. Barr follows:]

STATEMENT OF HON. WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF THE UNITED STATES

Mr. Chairman, Senator Hatch and the Members of the Committee, I am pleased to provide my views on the important issues surrounding our response as a Nation to attacks against our homeland and the continuing national security threat posed by al Qaeda. By way of background, I have previously served as the Assistant Attorney General, the Deputy Attorney General, and the Attorney General of the United States. I have also served on the White House staff and at the Central Intelligence Agency. The views I express today are my own.

President Bush's decision to authorize the use of military tribunals against members of al Qaeda is not only well within his constitutional authority, but is supported by ample historical precedent and practical common sense. Al Qaeda is an armed foreign force that is waging war against the United States. In confronting such an enemy, the President is acting as Commander-in-Chief of our armed forces he is exercising the war powers of the United States. Our national goal in this instance is not the correction, deterrence and rehabilitation of an errant member of the body politic; rather, it is the destruction of foreign force that poses a risk to our national security. It is anomalous to maintain that the President has constitutional authority to order deadly bombing strikes or commando raids against such an enemy, while at the same time maintaining that, if the enemy surrenders or is captured, the President is suddenly constrained to follow all the constitutional

protections applicable to domestic law enforcement. Foreign nationals who are in a state of armed conflict with the United States do not enjoy the same constitutional rights as American citizens. Since before the Revolutionary War, it was recognized that those who violate the laws of war during an armed conflict have the status of "unlawful belligerents" and are subject to military trial for their offenses. Whether they pursue their deadly purpose in a training camp in Afghanistan or a flight school in Florida, al Qaeda members are unlawful belligerents and, under clear Supreme Court precedent, are entitled only to treatment consistent with the laws of war. Having cast their lot by waging war against the United States, they are properly judged by the laws of war.

1. THE PRESIDENT HAS CONSTITUTIONAL AUTHORITY TO ORDER THE TRIAL OF AL QAEDA MEMBERS BY MILITARY TRIBUNAL.

On September 11, 2001 this Nation was attacked by a highly-organized foreign armed force known as "al Qaeda." The attack cost more American lives and caused more property damage than the Japanese sneak attack on Pearl Harbor. This same organization has declared itself at war with the United States and has stated its intention to use any weapons at its disposal-including weapons of mass destruction-against both civilian and military targets. Prior to September11, 2001, al Qaeda acknowledged perpetrating armed attacks on our military personnel, our naval ships, and our embassies. al Qaeda operatives and their supporters are presently engaged in the field against our own military forces in Afghanistan. They have personnel in over 60 countries, where they are undoubtedly poised to attack United States interests. There can be little doubt that "cells" of this organization remain in the United States, ready to carry out further attacks.

It is clear that a state of war exists between the United States and al Qaeda. Al Qaeda has openly proclaimed a war against the United States and has repeatedly carried out attacks against us. The President, as Commander-in-Chief, is empowered to take whatever steps he deems necessary to destroy this adversary and to defend the Nation from further attack. As the Supreme Court recognized in The Prize Cases, 67 U.S. 635, 668 (1862):

If a war be made by the invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be "unilateral."

In this case, the President's judgment that a state of armed conflict existed is confirmed by the actions both of the Congress and our allies. By its Joint Resolution of September 18, 2001, Congress recognized that the attacks of September 11th "render it both necessary and appropriate that the United States exercise its rights to self-defense. "Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, (2001). Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. “Id. §2(a). The Joint Resolution expressly recites that it constitutes a specific statutory authorization for the use of military force within the meaning of the War Powers Resolution. Id. § 2(b). Obviously, the President does not need a joint resolution of Congress to enforce our domestic criminal laws, and those laws are not generally for the "self-defense" of the Nation. Similarly, our NATO allies have recognized that the attacks of September 11th constitute acts of war by invoking the mutual self-defense provisions of Article 5 of the North Atlantic Treaty.1 When the United States is engaged in an armed conflict and exercising its powers of national defense against a foreign enemy, it is acting in an entirely different realm than the domestic law enforcement context. The Nation, and all those who owe her allegiance, are at war with those foreign enemies. That is not an analogy or a figure of speech-it describes a real legal relationship and one that is fundamentally different from the government's posture when it seeks to enforce domestic law against an errant member of society. When we wage war, the Constitution does not give foreign enemies rights to invoke against us; rather, it provides us with the means to defeat and destroy our enemies. As President Lincoln understood, and

1 Article 5 of the North Atlantic Treaty can only be invoked in the case of an "armed attack" against a NATO member.