repeatedly said, maintaining the security of our Union is the sine qua non of all civil liberties. It is the basis upon which the exercise of all other civil rights depends.

Much of the criticism of the President's Executive Order authorizing the use of military tribunals stems from a fundamental confusion between the realm of domestic law enforcement and the realm of military defense of the Nation. This is not a confusion that has been shared by past Presidents, past Attorneys General, or the United States Supreme Court. Since the Revolutionary War, this country has used military tribunals to punish violations of the laws of war by our enemies during armed conflicts. Congress has consistently confirmed the jurisdiction of these tribunals by statute and the Supreme Court has recognized that military tribunals lie outside the judicial power and the constitutional norms that must attend a civilian trial. Military tribunals constitute part of the executive function of the actual prosecution of war-they are an instrument at the President's disposal as part of the overall war effort. The President's decision to use them in our war against al Qaeda is supported by historical precedent, Supreme Court decisions, and common sense. American history is replete with examples of the use of military tribunals to try foreign combatants for violations of the laws of war. The legitimacy of their use does not depend upon the nature of the armed conflict, whether a formal declaration of war has been made, or whether the unlawful belligerent committed the violation here or abroad. Thus, in 1780, George Washington appointed a "Board of Commissioned Officers" to try Major John Andre, a British spy who was accused of receiving strategic information from Benedict Arnold. In 1818, then-General Andrew Jackson ordered two British citizens tried by a military tribunal for inciting Seminole Indian attacks against American civilians in Georgia. Military tribunals were used extensively during the Civil War to try confederate soldiers and spies who acted out of uniform to attack Union ships or industrial plants. See Ex Parte Quirin, 317 U.S. 1, 31 n. 9 (1942) (listing examples). Indeed, a military tribunal, known as the Hunter Commission, was empanelled to try those responsible for the assassination of President Lincoln. In opining on the constitutionality of such a commission, Attorney General Speed wrote: "The commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war. "11 U.S. Op. Atty. Gen. 297, 305 (1865). He further opined that the laws of war provided for military trials for "secret participants in hostilities, such as banditti, guerillas, spies, etc. "Id. at 307.2 Attorney General opinions have also recognized that military tribunals could be used to try Indians for crimes against civilians where a state of open hostility between an Indian tribe and the United States existed. See, e.g., 14 U.S. Op. Atty. Gen. 249 (1873) (Modoc Indian prisoners accused of crimes against civilians during hostilities with the United States could be tried by military tribunal). See also 13 U.S. Op. Atty. Gen. 470, 471 (1871) (noting that war need not be "formally proclaimed" for the laws of war to apply to military engagements with Indian tribes).

The most recent and most apt example of the use of military tribunals is the trial of the eight Nazi saboteurs that took place before seven military officers here in Washington, D. C. in July of 1942. These foreign operatives were trained in what the Supreme Court referred to as a "sabotage school" near Berlin. Ex Parte Quirin, 317 U.S. at 21. They entered the United States surreptitiously, moved about in civilian dress, and were trained and equipped to attack civilian targets such as roads, bridges and industrial plants. They were initially arrested and detained by civilian authorities. President Roosevelt determined that they should be tried for violations of the laws of war before a special military commission, composed of seven United States army officers.

In Ex Parte Quirin, a unanimous Supreme Court upheld the jurisdiction of the military commission to try these individuals for violations of the laws of war. Echoing Attorney General Speed, the Supreme Court found that the military tribunal was "an important incident to the conduct of war," that allowed the President "to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." 317 U.S. at 28

2 Attorney General Speed's opinion has stood the test of time. Recently, a federal district court rejected a challenge to the jurisdiction of the Hunter Commission in reviewing the denial of a request to correct military records pertaining to Dr. Samuel Mudd, the medical doctor who aided John Wilkes Booth and David Herold after the assassination. See Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001). Relying upon the Supreme Court's Quirin decision, the district court found that "persons such as spies or combatants not wearing uniforms or in disguise, who may come secretly across enemy lines for the purpose of robbing, killing or destroying bridges, roads, canals, etc.," are "unlawful belligerents" subject to military trial for violations of the laws of war. Id. at 145.

29. Thus, these tribunals were part and parcel of the Commander-in-Chief's prosecution of the war effort. The Supreme Court held that military tribunals were not an exercise of the judicial power conferred by Article III of the Constitution, and therefore were not subject to constraints imposed upon civilian criminal process by the Fifth and Sixth Amendments. Id. at 38-39. The Court noted that unlawful belligerents had been subject to military trial since before the framing of the Constitution, and that Congress had authorized the trial of alien spies by military tribunal shortly after the adoption of the Constitution. Id. at 41. The Supreme Court also noted that anomaly that would be created by a contrary ruling our own soldiers would be subject to military trial for violations of the laws of war while enemy aliens charged with such violations would receive all the constitutional protections of a civilian trial. Id. at 44.3

The Supreme Court's ruling in Quirin makes clear that unlawful belligerents cannot invoke the constitutional guarantees applicable to a civilian trial and are not entitled to judicial review of the results of a military tribunal. Indeed, Quirin_reserved the issue whether unlawful belligerents were entitled to a trial at all before the President could subject them to "disciplinary measures. "Id. at 47. Qurin's holding does not turn on location within or outside the United States, the potential applicability of civilian crimes, the availability of civilian courts, or even the citizenship of the individuals involved. Rather, Quirin turns entirely on status as "unlawful combatants" under the laws of war. It is this status that entitles the President to exercise military power against such persons—including the use of military tribunals.

Nor need we examine the issue reserved in Quirin of the Executive's authority to establish military tribunals absent legislative mandate. Congress has authorized the use of military tribunals consistent with the laws of war in the Uniform Code of Military Justice. Title 10, United States Code, Section 821, provides that: “The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals." The President is also given authority to prescribe the rules for all military tribunals, including "pretrial, trial, and post-trial procedures" and "modes of proof." See 10 U.S. C. §836. In Application of Yamashita, 327 U.S. 1, 7-8 (1946), the Supreme Court held that, by enacting the precursors to these provisions in the Articles of War, Congress had "sanction[ed] trial of enemy combatants for violations of the laws of war by military commission," and had "adopted the system of military common law applied by military tribunals."

The President's judgment that members of al Qaeda and those who knowingly give them aid and comfort are subject to military justice is clearly supported by the facts and the law in this case. The very raison d'etre of al Qaeda is to violate the laws of war by targeting innocent civilians in order to create a state of terror. As the Supreme Court noted in Quirin, never in the history of our Nation have foreign enemies who infiltrated our territory been accorded the status of civilian defendants with all the rights enjoyed by citizens of the United States. See 317 U.S. at 42 (“It has not hitherto been challenged, and, so far as we are advised, it has never been suggested in the very extensive literature of the subject that an alien spy, in time of war, could not be tried by military tribunal without a jury.") (footnote omitted). If armed al Qaeda members had made a military landing on Manhattan Island and began attacking civilians, few would argue that they were not combatants subject to the laws of war. How does the fact that they instead infiltrated the United States surreptitiously with the same evil purpose somehow give them greater constitutional rights? By such logic, Nazi war criminals could have avoided military justice simply by sneaking into the United States and invoking their "right" to a jury trial in civilian court.

2. DOMESTIC CRIMINAL JUSTICE PROCEDURES WILL FRUSTRATE OUR FIGHT AGAINST

AL QAEDA.

In addition to its sound constitutional and statutory basis, the President's Executive Order establishing the option of military tribunals makes good sense. It will allow for a more effective response to the al Qaeda threat, while at the same time

3 In Quirin, the Supreme Court reserved the constitutional issues of whether the President needed any legislative authorization to empanel military tribunals, see 317 U.S. at 29, and whether Congress could "restrict the power of the Commander in Chief to deal with enemy belligerents," id. at 47, because it found that Congress had approved the use of military tribuanals in the Articles of War.

not insisting upon the application of constitutional and statutory rights in a context where they are inapposite and where their wooden application could lead to their erosion.

The constitutional protections applicable to a domestic criminal trial, such as trial by jury in the district where the crime occurred, the right a grand jury indictment, and the right to confront and cross examine witnesses are designed to protect our citizenry from the power of government. They have no logical application to the exercise of military power to protect our citizenry and our government from an external foe. Indeed, these rights can be exploited by a foreign enemy to learn about our defenses and intelligence methods and make future attacks more likely to succeed. Civilian criminal defendants have the right to obtain any statements they have made that are recorded by the government (including electronic surveillance tapes), see Fed. R. Crim. P. 16, prior written statements of government witnesses who testify at trial, see 18 U.S.Č. § 3500, and any material that might impeach the credibility of government witnesses. See Giglio v. United States, 405 Ú.S. 150 (1972). These rights are inimical to the successful confrontation of a foreign foe. Indeed, one of the key factors in the success of the attacks of September 11th was the operational security practiced by the al Qaeda members in the United States. Information disclosed during civilian trials regarding our law enforcement techniques and capabilities could assist al Qaeda in evading detection in future attacks. Moreover, a public trial can be used by civilian criminal defendants to practice what is known as “graymail. “The defense claims the necessity of revealing national security information during the trial, thus gaining significant leverage over the prosecution. We should not even allow the possibility for such an occurrence in our pursuit of al Qaeda.

Civilian criminal defendants have the right to challenge the seizure of evidence under the Fourth Amendment. They can also challenge the authenticity of physical evidence by demanding that a chain of custody be established. These rules cannot logically be applied to "evidence" uncovered in a military theater such as Afghanistan. Our military forces are rightly concerned with winning the war-not securing crime scenes and careful documentation of chains of custody.

Finally, civilian trials in this context are not safe for grand jurors, judge, petit jurors or civilian witnesses. In the aftermath of these attacks and our military response, a prolonged civil trial would make the federal courthouse itself and all trial participants clear targets for al Qaeda reprisals. Military trials held on military installations-whether here or abroad-will be safer for all concerned.

In closing on this issue, let me say that all power is subject to abuse. But neither our constitutional law nor our policy toward terrorism should be made by parade of horribles. The President has limited the application of his order to foreign nationals who: 1) are al Qaeda members; 2) commit acts of international terrorism against the United States; or 3) knowingly aid and abet acts of international terrorism against the United States. As cases like Quirin and Yamashita make clear, the writ of habeas corpus is always available to test the jurisdiction of military tribunals in Article III courts. Moreover, our courts martial and military tribunals have a long history of rendering impartial justice. Many Nazi and Japanese combatants were acquitted of war crimes by military tribunals. The President's Executive Order promises "full and fair trials" under procedures to be promulgated by the Secretary of Defense. I have no doubt those procedures will, consistent with 10 U.S.C. § 836, incorporate as many aspects of civilian procedure are practicable under the circumstances. We should not pass judgment on these military tribunals until they themselves are allowed to operate and pass judgment. We insult our military by comparing these tribunals to those established by foreign dictators or by slighting them as "Kangaroo courts" before they have even been convened.

3. THE ATTORNEY GENERAL MAY LAWFULLY WITHHOLD OPERATIONAL AND OTHER DETAILS REGARDING AN ONGOING CRIMINAL INVESTIGATION.

The Committee has also expressed some concern over the fact that the Department of Justice has declined to release statistical data regarding its continuing investigation into al Qaeda activities and operatives here at home. In my view, this criticism is unfounded. The Sixth Amendment guarantees a criminal defendant "a speedy and public trial. “In addition, the Supreme Court has found that the public has a common law and First Amendment right to access to proceedings central to the criminal process, such as pretrial hearings. See generally Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). These rights have never been interpreted to extend to operation details of the investigative stage of criminal law enforcement. Our laws provide for strict secrecy of grand jury proceedings, both for the protection of individuals called before the grand jury and the integrity of the government's investiga

tion. See Fed. R. Crim. P. 6(e). Affidavits in support of arrest and material witness warrants as well as indictments are often filed with the court under seal in cases where they may contain information that could compromise ongoing criminal investigations. In its Exemption 7, the Freedom of Information Act expressly recognizes that information that "could reasonably be expected to interfere with enforcement proceedings," including compromising confidential sources or law enforcement "techniques or procedures" is exempt from public disclosure. See 5 U.S.C. § 552(b)(7).

That is undoubtedly the case here. Information about who is presently detained by the government, when and where they were arrested, their citizenship and like information could be of great value to criminal associates who remain free. First, it would provide al Qaeda with information regarding what "cells" or operations have been compromised and which "cells" or operations are still intact. Equally dangerous, it could allow al Qaeda to extrapolate the kind of criteria and sources of information law enforcement was employing in attempting to locate al Qaeda operatives and thereby tailor their activities to avoid further detection. These are exactly the kinds of harms that FOIA Exemption 7 is designed to protect against. Finally, as Attorney General Ashcroft has noted, there may be significant privacy and even due process concerns with the wholesale release of the names of those detained in this investigation. A government "blacklist" naming individuals suspected of connections with al Qaeda could seriously affect the reputation, employment prospects, and even physical safety of the individuals involved. Moreover, such a list would be compiled based upon mere suspicion, without an opportunity for those named to marshal evidence of their innocence of the charge. Cf. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951). For these reasons, I believe the Department of Justice has acted properly in refusing to release operational and statistical information that could compromise ongoing law enforcement operations and violate the rights of the individuals involved.

4. THE ATTORNEY GENERAL'S INTERIM RULE AUTHORIZING THE MONITORING OF ATTORNEY CLIENT COMMUNICATIONS IN LIMITED CIRCUMSTANCES IS CONSTITUTIONAL. In my view, the Attorney General's rule regarding the monitoring of attorney-client communications, given the limited and unique circumstances to which it applies, is constitutional under the analysis set out by the Supreme Court in Weatherford v. Bursey, 429 U.S. 545 (1977). Three factors lead me to this conclusion. First, the monitoring is undertaken for the lawful purpose of frustrating further criminal activity that threatens innocent human life. The Supreme Court has recognized that this is a legitimate law enforcement interest that must be balanced against Fifth and Sixth Amendment rights. See New York v. Quarles, 467 U.S. 649 (1984) (recognizing "public safety" exception to Fifth Amendment requirement of Miranda warnings). Second, as in Bursey itself, the prosecution team will not learn of any conversation regarding legal strategy that might prejudice the defendant or benefit the government. See Bursey, 429 U.S. at 557-58 (holding that unless there was "a realistic possibility of injury to Bursey or benefit to the State, their can be no Sixth Amendment violation"). Third, the requirement that both the detainee and his attorney receive notice of the monitoring eliminates the need for prior judicial intervention under the doctrine of "implied consent. "See, e.g., McMorris v. Alioto, 567 F. 2d 897, 900-01 (9th Cir. 1978 (Kennedy, J.) (applying doctrine of implied consent to searches of persons entering a federal courthouse).

The Attorney General has carefully limited his rule to prisoners who are already under Special Administrative Measures, see 28 C.F.R. §501. 3(a), and for whom he further finds there is "reasonable suspicion exists to believe" that attorney client communications may be used to "facilitate acts of terrorism. “Id. § 501. 3(d). The Attorney General has indicated that he will interpret the term "reasonable suspicion," as the Supreme Court has in the case of police stops, see Terry v. Ohio, 392 U.S. 1, 27-28 (1968), to require objective facts from which a reasonable person could draw an inference that criminal activity was afoot.

This rule is a necessary prophylactic measure designed to allow the Attorney General to take appropriate action in the face of the kind of massive danger to innocent human life posed by attacks such as those perpetrated on September 11th. Faced with this kind of threat, we cannot require the Attorney General to prove to a court that the attorney client privilege has already been abused to further criminal activity. By the time the Attorney General has marshaled such facts and presented them to a court, it could well be too late. In these unique circumstances, where law enforcement acts not to gather evidence but to prevent an imminent and potentially devastating public harm, it is appropriate that the Attorney General make the initial determination without judicial intervention. Because both the detainee and his

attorney are given notice of the monitoring, they may challenge the Attorney General's actions in federal court after the fact.

CONCLUSION

The actions of the President and the Attorney General have, in my view, been measured and prudent in light of the threat to American lives and liberty posed by al Qaeda. Our Constitutional scheme contemplates that the powers and duties of the Executive Branch of government will expand in a time of national crisis or armed conflict. The swiftness and unity of purpose with which the Executive can act to defeat foreign threats to our liberty has proven an indispensable bulwark in securing our freedoms throughout our history. In perilous times, as the Framers envisioned, it has been both the energy and wisdom of a strong Chief Executive (uniquely accountable to all the people) that has ultimately protected our liberty, not undermined it. We owe our freedoms today in no small measure to the decisive actions of Abraham Lincoln and Franklin Roosevelt, taken in the face exigent danger. In the current circumstances, the real threat to domestic liberties is the artificial restriction of our powers of national defense by gratuitously expanding constitutional guarantees beyond their intended office. I have every confidence that the President and the Attorney General will protect our Nation and the liberties we hold dear. I welcome the Committee's questions.

Chairman LEAHY. I have always enjoyed having your testimony. I hate to be a bit of a bear on the light. Unfortunately, we have other constraints that require that.

Mr. Heymann?

STATEMENT PHILIP B. HEYMANN, JAMES BARR AMES
PROFESSOR OF LAW, HARVARD LAW SCHOOL

Mr. HEYMANN. How long would you like me to restrict myself to, Senator Leahy? Seriously.

Chairman LEAHY. I thought the panel had been told 5 minutes. Mr. HEYMANN. Five minutes is just fine.

I would like to explain that I think of myself here and I would like to speak today as a terrorism expert whose book is doing surprisingly well since September 11th. I don't want to focus on the constitutional issues because you have lots of other people to focus on them. I don't agree with Mr. Barr. And I would like to say as to that only that when asked what was the nearest precedent, Mike Chertoff said Ex Parte Quirin. Ex Parte Quirin is a case about eight identified people, indisputably Nazis, indisputably from Germany, sent to a military trial, a single military trial, on the charges of espionage, being behind enemy lines without uniform, which had been traditional since the Revolutionary War. Very traditional.

It is a long way to go from that to an order that covers 20 million people in the United States, lasts forever, covers any act of terrorism, whether connected to Al Qaeda or not, covers any aiding, abetting, or conspiracy towards any act of terrorism, covers harboring anybody who aided or abetted ever in the past somebody who ever in the past was a terrorist, and forever henceforth. That is a long way from Ex Parte Quirin, so I don't share Mr. Barr's confidence that the Supreme Court will sustain that order.

Let me go to the policies of counterterrorism. The first lesson there that everybody who has studied terrorism learns is a military lesson, and that is, after you get your gun, try very hard not to shoot yourself in the foot. Or if you are going to bomb the enemy, try not to bomb friendly forces at the same time.