if we do not find some suggestions to improve the system. But, I must say there has been a host of changes, some very extreme, that are justified by the Constitution, statute, history or reason.

The last example of this tactic was the USA Patriot Act-the Anti-Terrorism Bill-that was vilified by political interest groups as "shredding the Constitution," "stripping our privacy," etc. When the bill was reviewed by more serious minds, however, we found that the bill's provisions did not violate the Constitution, and, after adjustment by Congress, the bill passed with an overwhelming vote.

Similarly, today, with respect to the President's order providing for the use of military commissions, we are hearing the ACLU state that the commissions "could easily be used against any one of some 20 million non-citizens within America." ACLU Urges Congress to Leash New Military Tribunals, Reestablish Oversight (visited Dec. 3, 2001) <http:www.aclu.org/safeandfree/>. In fact, the President's November 13th Military Order has a requirement in addition to non-citizenship: that the non-citizen be a member of al Quaida or engaged in or aiding someone engaged in international terrorism. Military Order of November 13,20001, § 2(a)(1)(i) and (ii). We can be sure that only a very small fraction of the 20 million non-citizens in America is engaged in international terrorism.

The People for the American Way charges that "the attorney general and his allies are acting in ways that threaten to circumvent [] checks and balances, effectively amending our Constitution by executive fiat." Statement of Ralph G. Neas, President of People for the American Way, concerning the Senate Judiciary Committee's hearings on civil liberties, (visited Dec. 3, 2001) <http://www.pfaw.org/news/ press//2001-11-28.347.phtml.>. In fact, the President's Military Order is directly consisted with the orders of prior presidents, Congress's statutes providing for military commissions, and the Supreme Court's cases approving the use of military commissions by the President and his military subordinates.

We have heard claims that the President's Order will result in "secret trials." Written Testimony of Kate Martin, Hearing Before the Committee on the Judiciary: DOJ Oversight: Protecting Our Freedoms While Defending Against Terrorism p.11. (Nov. 28, 2001). In fact, White House Counsel Gonzales has explained that the trials will only be as secret as the “urgent needs of national security" require. Alberto Gonzales, Martial Justice, Full and Fair, New York Times, Nov. 30, 2001, at A27. We do not want judges and jurors to be under death threats from terrorist groups like the judge in the 1998 embassy bombing trial.

We have also heard people compare the President's Military Order to the World War II internment of over 70,000 Japanese based on their race-the Korematsu case. Written Testimony of Prof. Neal Katyul, Hearings Before the Committee on the Judiciary, DOJ: Oversight Protecting Our Freedoms While Defending Against Terrorism, p. 8. In fact, unlike the World War II internment, the President's Military Order expressly provides that persons detained thereunder will be "treated humanely, without any adverse distinction based on race." Military Order of November 13, 2001 §3(b) (emphasis added). Further, the military commissions will provide for what the internment order did not-an individualized determination of whether an accused committed a crime, in this case, an international war crime.

Finally, I have a press article railing that the President's Military Order amounts to a seizure of "dictatorial power," that it provides for the use of "military kangaroo courts," and that it is a "Soviet-style abomination." William Safire, Seizing Dictatorial Power, The New York Times, November 15, 2001, at A31. Military trials are full and fair. Our service men and women are subject to them every day. Indeed, F. Lee Bailey, famed criminal defense lawyer, has consistently praised their fairness. It is a slap in the face to America's military and its history of dispensing justice to call this system a 'kangaroo court.'

When seriously examining an issue of national, or in this case international, importance, it is incumbent upon the Senate to separate partisan rhetoric from legitimate substance. I commend Senator Schumer for taking this approach.

With respect to military commissions, my personal experience as a federal prosecutor and as an Army Reserve JAG officer taught me that violation of federal criminal statutes are tried in Article III courts, violation of the Uniform Code of Military Justice are tried before courts martial, and violations of the laws of war are tried before military tribunals, including military commissions. My experience has also taught me that any court, civilian or military, must be fair and adhere to the rule of law.

Our country has been attacked by ruthless terrorists who slipped into this country, hijacked civilian airliners, and killed approximately 4,000 of our civilian citizens without warning, without trial, and without justice. They have declared a Wal against America and everything that we stand for-liberty, justice, and the rule of

law. They have committed war crimes and thus voluntarily gave up the protections that the law provides to civilian or to military servicemen who follow the law of war. On September 18, 2001, the Congress exercised its authority under the War Powers Act to authorize President Bush to use all necessary military force to defend the United States and our people. Joint Resolution to Authorize the Use of United States Armed Forces Against Those Responsible for Recent Attack Launched Against the Untied States, Pub L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). On November 13, 2001, President Bush issued an order authorizing the trial of captured terrorists for war crimes in military commissions. (1942).

It is against this background that we address the questions that have been raised as to the legitimacy of the President's Military Order. We should begin with Constitution and our history.

Constitution, Statute, and Supreme Court Precedent Authorize the Use of Military Commissions-First, the President's Military Order is based on sound legal authority that has been recognized by all three branches of government. Article 2, section 2, Clause 1 of the Constitution provides that the "President shall be Commander and Chief of the Army and Navy of the United States. . . ." In In re Yamashita, 327 U.S. 1, 10 (1946), the Supreme Court held that the President's commander in chief power includes the power to try war criminals by military commission.

Article I, §8, cl. 10 of the Constitution confers upon Congress the power "To define and punish...Offences against the Law of Nations," and the law of nations includes the law of war.

In exercising its constitutional power, Congress passed section 821 of Title 10 of the United States Code that states, in pertinent part:

"The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions. . .of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions. ." (Emphases added)

President Roosevelt ordered the trial of eight Nazi saboteurs by military commission 1942. Military Order of July 2, 1942. In Ex parte Quirin, 317 U.S. U.S. 1 (1942), the Supreme Court approved President Roosevelt's order. In In re Yamashita, 327 U.S. 1 (1946), the Supreme Court approved the use of a military commission, ordered by General MacArthur, to try a Japanese war criminal.

Thus, President Bush's order to try terrorists involved with killing 4,000 innocent Americans is based on precedent from all three branches of government: Legislative, Executive, and Judicial.

History-Second, American history is replete with examples of the President, or our military commanders, using military commissions to try those charged with offenses against the law of war. General George Washington appointed a military tribunal to try Major Andre, a British spy who was cooperating with Benedict Arnold. Ex parte Quirin, 327 U.S. 1, 31 n.9.

During the Mexican War of the 1840s, General Winfield Scott ordered military commissions to try offenses against the law of war. Ex parte Quirin, 327 U.S. 1, 31 n.9 (1942).

During the Civil War, Union Army General Order No. 100, provided for the use of "military commissions" to try offenses outside the rules of war. Ex parte Quirin, 317 U.S. 1, 31 n.9 (1942).

During World War II, President Roosevelt used a military commission to try the eight Nazi saboteurs who surreptitiously slipped into this country without_military uniform and conspired to blow up government and private property. Ex parte Quirin, 317 U.S. 1 (1942).

After World War II, President Truman agreed to use an International Military Tribunal to try major Nazi war criminals at Nuremberg. TELFORD TAYLOR, AN ANATOMY OF THE NUREMBERG TRIALS 73 (1992). Further, Generals Eisenhower and MacArthur used military commissions to try hundreds of war criminals in Europe and Asia. See Maximillian Koessler, American War Crimes Trials in Europe, 39 Geo. L.J. 18 (1951).

President Bush's order to try the terrorists involved with killing the 4,000 innocent Americans is consistent with these historic precedents.

Constitution Does Not Require that Procedures be Set by Congress-Third, the President may legally provide for the Department of Defense to draft procedures for the Military Commissions. Congress has expressly provided in section 836 of Title 10 of the United States Code that "[p]retrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in...military commissions...may be prescribed by the President.. (Emphasis added.)

Acting under similar authority, President Roosevelt ordered that the Military Commission that would try the eight Nazi saboteurs would set its own procedures. MILITARY ORDER OF JULY 2, 1942 ("The Commission shall have power to and

shall, as occasion requires, make such rules for the conduct of the proceeding, consistent with the powers of military commissions under the Articles or War, as it shall deem necessary for a full and fair trial of the matters before it.").

President Truman, through his representative Justice Jackson, provided that the Allied prosecutors would submit, and the military tribunal would approve, procedures for conducting the Nurembery trial. See CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL ART. 14(E).

President Bush's order to try the terrorists who helped kill 4,000 innocent Americans provides for the issuance of further procedures by the Department of Defense and is thus consistent with the traditional deference that Congress has shown to past Presidents who ordered military commissions.

Different Procedures for Military Commissions-Fourth, military commissions and tribunals dealing with war crimes have traditionally had different means of adopting procedures, different standards of evidence, different voting requirements, and different appeal rights than Article III courts by our servicemen.

The charter for the Nuremberg International Military Tribunal provides that the prosectors would draft the procedures prior to trial for the military tribunal's approval, that evidence would be admitted if it had probative value, that a majority vote was sufficient in all cases, and that there would be no appeals. CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL ART 14(e) (procedures), 19 (evidence), 4(c) (vote), and 26 (appeal).

Similarly, President Roosevelt's proclamation for the trial of the eight Nazi saboteurs by military commission provided for the commission to set its own procedures, for evidence to be admitted when it had probative value to a reasonable man, for conviction by a two-third's vote, and for no direct appeal to a higher court. Military Order of July 2, 1942.

Consistent with these precedents for the admission of evidence with probative value to a reasonable person, for conviction by a two-third's vote, and for no direct appeal. Military Order of November 13, 2001 §4. Of course, terrorists tried in the United States will have habeas corpus review in the federal courts. Ex parte Quirin. 317 U.S. 1 (1942). Before we criticize the Department of Defense's procedures, we should wait until all the procedures are drafted and we have had an opportunity to review them.

Constitution Does Not Require Consultation-Finally, while Article II, Section 2, Clause 2 of the Constitution indicates that the President should obtain the Advice and Consent of the Senate in appointing federal judges, there is no similar consultation requirement for the issuance of military orders. Article II, Section 2, Clause 1 provides that the President is the Commander in Chief. As Commander in Chief, several Presidents have issued orders and authorized agreements to try war criminals by military tribunal or commission without adhering to a consultation with Congress requirement.

In Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court upheld the constitutionality of the military commission without any reference to a consultation with Congress requirement. The Court held that existing statutes—the pre-Uniform Code of Military Justice statutes-recognized military commissions as the proper forum to try persons accused of war crimes. Id. at 29.

Similarly, there was no formal question raised that President Truman should have consulted with Congress before agreeing with the other Allied Powers to use an International Military Tribunal to try the major Nazi war criminals. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 73 (1992). And the President's subordinates, Generals Eisenhower and MacArthur, issued orders allowing literally hundreds of military commissions to try lesser war criminals without adhering to any consultation with Congress requirement. Maximillian Koessler, American War Crimes Trials in Europe, 39 Goe. L.J. 18 (1951). In In re Yamashita, 327 U.S. 1 (1946), the Supreme Court upheld the use of Military Commissions to try war criminals, again with no mention of a consultation requirement for the President or the Generals with Congress.

The same constitutional and statutory authorizations for the President's use of military commissions. remain in the law today. Article II, Section 2, Clause 2; 10 U.S.C. §821. No additional enactments or resolutions of Congress are required. Accordingly, while a formal consultation by President Bush with Congress would have been politically expedient, it was not constitutionally required. Nonetheless, I am pleased to see this hearing, and I hope to see increased consultation and cooperation with the Congress in the future.

CONCLUSION

In sum, the President had constitutional, congressional, and historical authority to issue the November 13th Military Order calling for trial of the terrorists who helped to kill 4,000 innocent Americans by military commissions. Instead of listening to the knee-jerk reaction of political interest groups attacking the Administration, we should await the issuance of the procedures by the Department of Defense. We should then review the procedures and provide constructive criticism.

I was very pleased Sunday to hear Secretary of Defense Rumsfeld welcome comment and debate on this subject as the DOD drafts its procedures. I am sure the Department of Defense will keep in mind that the procedures by which the accused terrorists are to be judged must be fair in fact and in appearance. As Justice Jackson said in his opening statement at the Nuremberg trial: "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice." TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 168 (1992).

Just as history judged the Allied powers by how they conducted the Nuremberg trial, so history will judge America by how we conduct the trials of the terrorists. We do not want history to conclude that America, through these military commissions, rendered "Victor's Justice," but real justice. We have done it before, and we can do it again.

While I will defer to the President until the procedures for the commissions are published by the Department of Defense, I thank the Chairman for holding this hearing, and I look forward to hearing from our excellent witnesses.

Senator SCHUMER. Thank you, Jeff. And, again, as I stated, I agree with you. I don't think anybody-some may, but I don't think any-most everybody disagrees that there is a need for secrecy and having a regular civil trial, criminal trial doesn't make sense here. We are just trying to figure out where the appropriate balance ought to be. What the President has proposed, first, hasn't been fleshed out. Second, unlike what Senator Hatch said, it is not a courts-martial. There are more procedures in a courts-martial. We may come to the conclusion on this committee that it ought to be the same as a courts-martial.

Senator SESSIONS. But a courts-martial doesn't give all the protections that a civil trial that we think protect defendants. But we don't think it is unjust.

Senator SCHUMER. That is correct.

Senator SESSIONS. And I would note Mr. Gonzalez, the White House counsel, had written an op ed in the New York Times in which he did make a strong statement that these commissions are not-these commission trials are not secret. The President's Order authorizes the Secretary to close the proceedings to protect classified information. It does not require any trial, or even portions, to be conducted in secret. And we should be as open as possible, he said.

Senator SCHUMER. And we have dealt with that under the CIPA law in the past as well, so we have good precedents here. We have got to figure out what to do. I think a lot of the problems here have occurred because the initial statements were so vague and so broad, and we are hoping to flesh those out.

We were just going to have the ranking members make opening statements, but I have been told that Mr. Feingold wants to make a brief statement. I know he feels very strongly about this, and so with the permission of the committee, I would call on Senator Feingold for a brief opening statement.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Mr. Chairman, I certainly don't want to delay things, and I will only speak for a minute. But I would like to welcome all the witnesses here today, and I certainly want to thank the chairman. This is an extremely important hearing to be held, in particular because I am concerned that the President has not adequately consulted with Congress on the issue of military commissions. I am concerned that he has not, in my reading, demonstrated that the civilian courts are inadequate to conduct these trials, particularly when terrorists have previously been tried in civilian courts, and I, like the chairman and I want this clear-do not oppose the concept of tribunals categorically. In fact, I believe the use of an international court at Nuremberg was effective in bringing Nazi war criminals to justice in a fair manner, but also while conferring legitimacy to the process. But I believe that military tribunals are proceedings our Nation should pursue only after careful thought and consideration.

For example, if people want to talk about the issue of the first World Trade Center trials, that is a fair example to discuss. When the ranking member, Senator Hatch, suggests that there was secret information about the structure of the building and information about the building, the question isn't simply do you take a leap then and assume that you have to use a military tribunal. The first question should be: Could that information have been adequately protected in a regular court through our laws, for example, under the Classified Information Procedures Act and other bills? That should be the first question.

I want to say that I am certainly not happy about the fact that that information came out in that trial. That was obviously a mistake. But that does not allow a leap to assuming that you have to go wholesale to a military tribunal approach. It means you have to use the protections that are provided under current law.

If it turns out that the evidence suggests that that is not adequate, so be it. Then I would join with the chairman and talk about the need to do something else. But I think it is far too easy to suggest that simply because a mistake was made there it can't be addressed under our current system.

In that context, I just want to briefly express my alarm at the failure of the Department of Defense to appear before the committee today. The Department of Defense was invited to appear before us today, but I understand that the Department of Defense declined to appear. I would note that this committee has already heard from the Department of Justice on the issue of military commissions, and today we will hear from the Department of State. But we have yet to hear from the Department of Defense. And that is the Department which has the primary authority under the President's Order for the creation and administration of the commissions.

I am very concerned by this lack of meaningful consultation, and I do hope that representatives of the Department of Defense will appear before us in the future to discuss these important issues. I thank you, Mr. Chairman.

Senator SCHUMER. Thank you, Senator Feingold.