never know for certain, I for one believe that the steps taken by our law enforcement and intelligence communities have saved us from even more harm.

I think this is a legitimate hearing. It is an important hearing. It is legitimate to ask tough questions. These are important questions. And it is legitimate for us to find out just why the administration has taken the positions that it has in some of these areas. But let nobody be deceived. The administration can take these positions. They have to justify them, but they can take them, and I think there is more than enough information here to justify the positions they have taken.

I myself am very concerned when these type of broad powers are used, but under these circumstances I am less concerned, hoping that we can prevent future terrorist acts. But I want to thank you, Mr. Chairman, for calling this hearing. I think it is the right thing to do. I think you have led us in the proper direction in calling it and in asking the appropriate people the tough questions that need to be asked. And I look forward to hearing from our witnesses. Chairman LEAHY. Thank you.

Mr. Chertoff, 2 days ago, we received a request that you wanted to testify, and I am happy to concede to your request, with the understanding, of course, that the Attorney General will be here next week. I want to wish you a happy birthday on behalf of the Committee. I am sure this is the thing that you have looked forward to the most as a way to spend your birthday.

[Laughter.]

Chairman LEAHY. So consider it our gift to you. Please go ahead. STATEMENT OF MICHAEL CHERTOFF, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE Mr. CHERTOFF. Thank you, Mr. Chairman. Good morning, Mr. Chairman, Senator Hatch, members of the Committee. I do welcome the opportunity and appreciate the invitation to appear today to talk about the Department of Justice's response to the attacks of September 11th.

Mr. Chairman, I agree that we have taken steps here which represent a departure from some of the things we have done in recent times. But then, again, we are not in recent times. We face an extraordinary threat to our national security and physical safety of the American people of a character that, at least in my lifetime, we have never faced before.

The President and the Attorney General have directed the Justice Department to make prevention of future terrorist attacks our number one and overriding priority. And to that end, we are aggressively and systematically conducting an investigation that is national and international in scope. But I believe we are doing so within carefully established constitutional limits.

In fact, in conducting this investigation, I should point out we are already making use of the tools which the Congress passed in the recently enacted USA PATRIOT Act for which we commend the Congress in acting so swiftly.

Members of this Committee have raised important questions about some of the investigatory steps that we have taken in recent weeks, and I look forward during the course of this hearing to

learning more about the Committee's specific concerns, but also to having the opportunity to assure the Committee that what we are doing is both sound policy and well within constitutional limits.

All of us understand and appreciate the importance of honoring the Constitution's enduring values, even in a time of national crisis. And we believe the Constitution gives us the tools to respond to the threat while remaining faithful to our basic values.

I don't need to restate for the Committee the images we all bear of September 11th: planes crashing into the Twin Towers and the Pentagon, grieving and devastated faces of survivors, the firefighters, the image of firefighters ad police heroes, and even the passengers on United Flight 93 who were forcibly enlisted as combatants against terrorists. All of us have these images burned into our national consciousness.

But as a Nation, the overwhelming, brute fact of Senator is this: This country was wantonly and deceitfully assaulted by an enemy intent on destroying as many innocent lives as possible. Before September 11th, Osama bin Laden and his henchmen wanted to kill thousands of innocent Americans. On September 11th, they succeeded. And since September 11th, bin Laden and his co-conspirators have brazenly announced that they will kill more of us. In a February 1998 directive, bin Laden ordered his followers "to kill Americans and plunder their money whenever and wherever they find it." Just last month, bin Laden made a video, declaring to his supporters, "The battle has moved inside America, and we shall continue until we win this battle, or die in the cause and meet our maker."

So for those who question whether we are at war, my answer is Mr. bin Laden has declared war on us.

Unlike enemies we have faced in past wars, however, this is an enemy that comes not openly but cravenly and in disguise. The terrorists in the Al Qaeda network plan their terrors years in advance. They are sophisticated, meticulous, and patient.

Of particular concern is their use of so-called sleepers. A sleeper is a committed terrorist sent sometimes years in advance into a possible target location, where he may assume a new identity and lead an outwardly normal life, all the while waiting to launch a terrorist attack. I will give you a example from the 1998 embassy bombing in Nairobi, Kenya.

Mohamed Odeh, who was convicted early this year for participating in that bombing, spent 5 years undercover in Kenya while actively assisting Al Qaeda. During that time he started a fishing business. He got married. He lived an outwardly modest and quiet life. But when called upon, he played a critical role in unleashing the terror that killed hundreds of innocent people.

Now, how are we going to combat the terrorists' use of sleepers? In many ways it is more difficult than looking for the proverbial needle in a haystack because in this instance the needle comes in disguise, disguised as a stalk of hay. We could continue as before and hope for the best, or we can do what we are currently doing: pursuing a comprehensive and systematic investigative approach that uses every available lawful technique to identify, disrupt, and, if possible, incarcerate or deport persons who pose threats to our national security.

learning more about the Committee's specific concerns, but also to having the opportunity to assure the Committee that what we are doing is both sound policy and well within constitutional limits.

All of us understand and appreciate the importance of honoring the Constitution's enduring values, even in a time of national crisis. And we believe the Constitution gives us the tools to respond to the threat while remaining faithful to our basic values.

I don't need to restate for the Committee the images we all bear of September 11th: planes crashing into the Twin Towers and the Pentagon, grieving and devastated faces of survivors, the firefighters, the image of firefighters ad police heroes, and even the passengers on United Flight 93 who were forcibly enlisted as combatants against terrorists. All of us have these images burned into our national consciousness.

But as a Nation, the overwhelming, brute fact of Senator is this: This country was wantonly and deceitfully assaulted by an enemy intent on destroying as many innocent lives as possible. Before September 11th, Osama bin Laden and his henchmen wanted to kill thousands of innocent Americans. On September 11th, they succeeded. And since September 11th, bin Laden and his co-conspirators have brazenly announced that they will kill more of us. In a February 1998 directive, bin Laden ordered his followers "to kill Americans and plunder their money whenever and wherever they find it." Just last month, bin Laden made a video, declaring to his supporters, "The battle has moved inside America, and we shall continue until we win this battle, or die in the cause and meet our maker."

So for those who question whether we are at war, my answer is Mr. bin Laden has declared war on us.

Unlike enemies we have faced in past wars, however, this is an enemy that comes not openly but cravenly and in disguise. The terrorists in the Al Qaeda network plan their terrors years in advance. They are sophisticated, meticulous, and patient.

Of particular concern is their use of so-called sleepers. A sleeper is a committed terrorist sent sometimes years in advance into a possible target location, where he may assume a new identity and lead an outwardly normal life, all the while waiting to launch a terrorist attack. I will give you a example from the 1998 embassy bombing in Nairobi, Kenya.

Mohamed Odeh, who was convicted early this year for participating in that bombing, spent 5 years undercover in Kenya while actively assisting Al Qaeda. During that time he started a fishing business. He got married. He lived an outwardly modest and quiet life. But when called upon, he played a critical role in unleashing the terror that killed hundreds of innocent people.

Now, how are we going to combat the terrorists' use of sleepers? In many ways it is more difficult than looking for the proverbial needle in a haystack because in this instance the needle comes in disguise, disguised as a stalk of hay. We could continue as before and hope for the best, or we can do what we are currently doing: pursuing a comprehensive and systematic investigative approach that uses every available lawful technique to identify, disrupt, and, if possible, incarcerate or deport persons who pose threats to our national security.

Are we being aggressive and hard-nosed? You bet. But let me emphasize that every step that we have taken satisfies the Constitution and Federal law as it existed both before and after September 11th.

Let me now turn very briefly to four areas that I know are of particular concern to the Committee.

First, the number of persons who have been arrested or detained arising out of the investigation into the events of September 11th and the conditions of their detention. There are currently 548 individuals who are in custody on INS charges and 55 individuals in custody on Federal criminal charges. Every person detained has been charged with a violation of either immigration law or criminal law or is being lawfully detained on a material witness warrant issued in connection with a grand jury investigation.

Every one of these individuals has the right to counsel. Every person detained has the right to make phone calls to family and attorneys. Nobody is being held incommunicado.

The identity of every person who has been arrested on a criminal charge is public. We have not released the names of persons being held on material witness warrants because those warrants are issued under seal as related to grand jury proceedings.

Finally, we have not compiled a public list of the persons detained on immigration charges, both to protect their privacy and for legitimate law enforcement purposes. But I emphasize there is nothing to prevent any of these individuals from identifying themselves publicly or communicating with the public.

Second, law enforcement is seeking to interview just over 5,000 persons on a voluntary basis. This list was assembled using common-sense criteria that take into account the manner in which Al Qaeda has traditionally and historically operated. So, for example, persons have been identified for interview because they entered the United States with a passport from one of about two dozen countries where Al Qaeda typically recruits or trains its members. Or people have been identified for interviews because they entered the country on particular types of visas that experience shows tend to be favored by terrorists.

Third, the monitoring of attorney-client communications. This monitor is taking place under a Bureau of Prisons regulation issued on October 31. It arises out of a 1996 Department regulation that permits monitoring of communications of inmates in Federal prisons where there is a substantial risk that if those people communicate with the outside, they may cause death or serious injury to others. The regulation applies only to 16 out of approximately 158,000 inmates in the Federal system.

The regulation or the regulatory amendment that was issued on October 31 extends the pre-existing special regulation to allow the monitoring of attorney-client communications for this very small group of people only if the Attorney General makes an additional finding that reasonable suspicion exists that a detainee may exploit his attorneys to communicate with others to facilitate acts of terrorism. And we have set up substantial safeguards to protect against the misuse of this information, which I will be happy to discuss.