territorial jurisdiction in bringing foreign violators to justice in our courts. But less than a month after the ink was dry, the President issues this military order directing the Secretary of Defense to move forward.

My question is this: When did the administration begin considering the use of military commissions rather than our civilian court system to adjudicate charges against the terrorists responsible for the September 11 attacks? When did that start?

Mr. CHERTOFF. Mr. Chairman, I don't know that I can give you a precise date about when it started, nor can I—

Chairman LEAHY. Well, when did you first hear about it?

Mr. CHERTOFF. I certainly have heard discussion about this or heard discussion about this going back some weeks. I think what is important to bear in mind

Chairman LEAHY. Did you hear discussions about it prior to our discussions here in the Committee, in both our formal and informal discussions with you, as we put together the anti-terrorism—

Mr. CHERTOFF. I would assume it is probably fair to assume that some people were discussing these matters at various points in time while we were undergoing the process of working out

Chairman LEAHY. But you didn't feel it at all necessary to tell any of us that you were discussing that as you were asking for these extraordinary powers that we were giving you in the USA PATRIOT Act?

Mr. CHERTOFF. I think, Mr. Chairman, the reason for that is as follows: We are talking about two totally different functions. We came before Congress, and I think rightly so, and with gratitude for Congress' willingness to move swiftly, to enhance the law enforcement powers which we are currently using as we speak in fighting terrorism, and that includes the full panoply of powers we can use to enforce the Federal criminal laws.

At the same time, everybody recognized and I don't think this is a secret-that the President has responsibilities apart from those as chief of law enforcement.

Chairman LEAHY. But, Mr. Chertoff, with all due respect, you are not answering my question. The administration, as you have testified, is obviously confident that the executive branch has the authority to establish these military commissions, even though there are a number of experts, legal experts, who feel otherwise, who feel that we have to authorize the setting up of the commission and the President has the authority to go forward with it.

But stepping back for a moment from who is right or who is wrong, which legal experts are right and which are wrong, you are a former prosecutor. Like all prosecutors, you know that if you get a conviction, you want it to be upheld. Wouldn't it have made more sense we are giving you all this extra authority, anyway-at the time when you were asking us for all these things, but apparently not telling us that you were thinking about military commissions, would it not have made some wisdom to come here and say, look, why don't you put in another section authorizing under-as has been done in the past, giving us specific authorization for the President as Commander-in-Chief to set up military commissions, thus removing the legal debate now going on in this country about whether you have the authorization to do so or not?

Mr. CHERTOFF. I think, Mr. Chairman, what I can say is that from the administration's perspective, the issue of military tribunals is a matter that comes under the jurisdiction of the Department of Defense as an extension of the President's power as Commander-in-Chief. I think to the extent the issue arose about how to develop this proposal, it arose on the Defense side of the house, so to speak. It is not normally something, I think, that we would consider raising as part of a law enforcement discussion relating to law enforcement powers.

Chairman LEAHY. So it is those guys' fault, not yours.

Mr. CHERTOFF. I don't think that is what I am saying, Mr. Chairman. I think what I am saying, these are separate and distinct functions, and we want to have both of these functions available to the President, recognizing that we intend to use both and that both have to be available.

But I don't think it was ever our sense that we ought to confuse the two or ought to try to bring the President's power as Commander-in-Chief into the realm of his power as chief executor of the domestic criminal laws.

Chairman LEAHY. But, Mr. Chertoff, don't you feel that most people see a big difference from-I mean, if you capture a number of Al Qaeda members or Taliban or others are captured, as have been by both the U.S. forces and those we have allied ourselves with in Afghanistan, nobody thinks that our special forces have to come in and before they grab somebody say I want to read you your rights. I mean, that is not the situation. We all understand that. We all understand that on the ground, in the battlefields, there are particular standards that are allowed by international law, by convention, and by just plain good sense on the part of the commanders there. But when you talk about bringing them back here and having these trials, then you raise an entirely different question.

For example, were you surprised at what Spain said, having grabbed a number of suspects that I think you and I would agree we would like to see, we would like to talk with, people that you and I would both agree are high on our list of suspects, but now they say they would not extradite these suspects if they are going to be tried before a military commission and they would insist on a civilian proceeding? Did that reaction surprise you at all?

Mr. CHERTOFF. Mr. Chairman, I think we all understand that when we deal with the issue of extradition from foreign countries, other countries sometimes lay down conditions which we have to satisfy before we extradite people. We have had that issue, for example, with respect to the death penalty, and it sometimes, frankly, caused a certain amount of discomfort on our side. So I think we are all well aware of that.

But I think, Mr. Chairman, I agree with your initial point. What this order does is it gives the President the flexibility to use all of his constitutional options when he is faced with the issue of a terrorist. If we were in the battlefield, if there is somebody caught in Afghanistan, the President should have the option not to bring that terrorist back in the United States and put them in a Federal court in New York or in Washington and subject those cities to the danger of having that trial. He should have the option to have those people tried in the field for violations of the law of war.

At the same time, the order leaves it perfectly free for the President to decide that, in order to accommodate extradition requirements of other countries, that we will try suspects in third-party countries in domestic Article III courts.

So nothing that has happened forecloses our options in terms of dealing with foreign governments or forecloses our options in terms of dealing with terrorists in the field. To the contrary, what the President has said is: I want to have the full menu, constitutional menu in front of me so that I can make a judgment based on all of these considerations, safety, relations with other countries, about the appropriate way to handle each individual case.

Chairman LEAHY. My time is up.

Senator Hatch?

Senator HATCH. Well, thank you, Mr. Chairman.

Mr. Chairman, I am a little bit surprised at your surprise regarding the President's issuance of the military tribunal order because you asked the very pertinent question of the Attorney General immediately after the September 25th hearing, which dealt specifically with the issue of military tribunals. In your question, which was fairly lengthy, you stated, "Some have suggested that those responsible for the attacks be treated as war criminals and tried by military tribunals."

In response to the question, the Attorney General pointed to the Quirin case, reminding you that in that case, the Supreme Court upheld the legality and constitutionality of military tribunals. And although the Attorney General did not commit at that time to creation of such tribunals, his answer plainly indicated that such tribunals were under consideration. And the Attorney General's responses are dated October 18.

Now, Mr. Chertoff, as you know, many of us on Capitol Hill, including a number of Senators in this room, spent an inordinate amount of time, a considerable amount of time and effort last month to pass the USA PATRIOT anti-terrorism legislation in an attempt to provide law enforcement with the tools it needs to effectively fight terrorism. Now, one criticism of the Department of Justice that I have read since the passage of that bill is that the USA PATRIOT Act has been of little help to the Department in the war against terrorism and, thus, that we should be skeptical when the Department again comes before us seeking additional powers.

Now, in your opening remarks, you briefly indicated that the USA PATRIOT Act had, in fact, been helpful in the war against terrorism. Could you give us a little better idea as to how the USA PATRIOT Act has been of use to the Department in the war against terrorism?

Mr. CHERTOFF. I would be delighted to do so, Senator, because we, in fact, moved literally within hours after the passage of the Act to start to implement it as part of our attack on terrorism.

First and foremost, of course, we have used it to start the process of sharing information between the intelligence side and the law enforcement side, which has been indispensable to satisfying our direction to protect the American people against future acts of terrorism.

We have used, for example, new Section 2703 of Title 18 to obtain information from a cable company that also provides Internet

services which we would not have been able to do under prior law without a specific court order.

We have used it more efficiently to obtain certain information via subpoena from Internet service providers. We have obtained court orders directed to out-of-district Internet service providers for logging information, which, again, has provided us with enhanced efficiency in terms of pursuing this investigation.

We have used the nationwide search warrant provision to obtain relevant information. We have used the emergency disclosure provisions to support our use of information that was provided to us by an Internet service provider.

So these are some examples of the specific ways we have actually deployed the new powers in the Act. In fact, I can tell you personally, not more than a few days ago a request came to me about whether we could get some information about addresses on the Internet, and it was information that was important that we might not have been able to get under the prior law. But because of the new law, I was able to direct people to go out and get an order and make sure we can get that information.

So we have absolutely made use of these tools and intend to continue to do so.

Senator HATCH. Thank you. I was particularly interested in the portion of your remarks in which you addressed the topic of those individuals who have been deterred in connection with the investigation into the events of September 11th. You mentioned an important fact that I think has gone unnoticed and underreported in our country, and that is this: All individuals being detained in connection with this investigation are alleged to have violated either the immigration laws of the United States, the criminal laws of the United States, or they are being held pursuant to the order of a Federal judge as a material witness to a crime.

Now, is that accurate?

Mr. CHERTOFF. That is accurate.

Senator HATCH. Could you speak at a little more length about these detainees, the basis upon which they are being held, and the procedural checks that are involved in the process? Because some of the criticisms I think have been unfounded, very unfair and have almost been hysterical. But the questions are important, and your answers are even more important.

Mr. CHERTOFF. Again, Senator, that is why I welcome the opportunity to testify here and try to set the record straight on some of these things.

First of all, we have the category of people-and they number 55 at this point-who are in custody under Federal criminal charges. They are treated like any other person charged under the Federal criminal laws. They are presumed innocent. They have a lawyer. They appear in open court. They know the charges against them. In due course, they will come to trial and, if convicted, they will be sentenced in accordance with the law.

Then we have a number of people who are held pursuant to material witness warrants for grand jury investigations. Again, the law provides for that. They have the right to a lawyer. They have the right to appear before a judge to have bond set and to argue

about whether they ought to be detained. So, again, that is part of the ordinary process of the law.

Finally, with respect to the immigration side of the house, there are people who are in custody, being detained pursuant to immigration violations. And let's be clear. Those are people who have essentially overstayed their welcome in this country. They don't belong here. They are charged with either having gotten here under false pretenses or having overstayed their visa or in some other fashion violated the immigration laws, which results in them being deportable.

And pursuant to the process that we have in INS, they go before an immigration judge. That judges makes a determination whether to keep them detained or not, and then it is reviewed, again, in the normal course.

So nothing that we are doing differs from what we do in the ordinary case or what we did before September 11th. And, importantly, nobody is held incommunicado. We don't hold people in secret, you know, cut off from lawyers, cut off from the public, cut off from their family and friends. They have the right to communicate with the outside world. We don't stop them from doing it.

And I hope that by putting this in perspective I can dispel some of the mystery that apparently has risen up in the press about what is actually going on.

Senator HATCH. Well, thank you. My time is up.

Chairman LEAHY. Thank you. Also, from just a housekeeping way, we are going to follow the early-bird rule, going from side to side. And on this side, the order of arrival, Senators Kennedy, Feingold, Durbin, and Feinstein; Senator Hatch on your side, Senators Specter, Sessions, Kyl, McConnell, and DeWine, in that order. Senator Kennedy?

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

Senator KENNEDY. Thank you very much. Thank you very much for being here responding to these questions.

I think at the start of these oversight hearings, we are very mindful, all of us are, of the challenge that we are facing with terrorism. There is no monopoly of concern in trying to be effective in dealing with the problems of terrorism. And many of us believe in a comment about the effectiveness of the President in galvanizing not only a coalition but looking at a multidimensional approach in trying to deal with the terrorism. But we need, in this Committee that has special responsibilities, to have the steps that are being taken by our National Government, as you outlined, to be both constitutional and effective. And that is why we want to work with you and the administration to try and do that, not all powers are here, but at least these are matters that we have considerable interest in and have worked on.

I think it is against a background where we have seen this country pass an alien and sedition law, and John Adams now who was recently more acclaimed by David McCullough is the one that signed the alien and sedition laws. We were facing challenges at that time.