that the lawyer may be furthering the crime. And so with the proper safeguards that I agree are necessary not to chill the attorneyclient privilege when there is valid legal information being communicated, we need that tool, also, in our arsenal.

Senator FEINGOLD. Thank you very much, Ms. Toensing. [The prepared statement of Ms. Toensing follows:]

VICTORIA TOENSING, ATTORNEY, DIGENOVA & TOENSINGFORMER DEPUTY ASSISTANT ATTORNEY GENERAL

The carnage of September 11, 2001 was neither a crime nor an act of war. The attack on civilians was an illegal act of war intended to destroy our American society. As such, it is beyond the scope of our criminal laws. Just as important, our goal in responding to September 11 cannot be limited to punishing the perpetrators. Foremost, the goal is prevention. The U.S. government must fulfill the nation's primary responsibility: protection of its citizens.

Because of these considerations, the Department of Justice and White House have initiated three proposals: 1) the option to try non-U.S. citizen belligerents before military tribunals, 2) detention of aliens for immigration violations and, for a reasonable time, to investigate suspicious facts of terrorism involvement, and 3) monitoring inmates' conversations with counsel when there is a basis to believe the inmate may use such communications to facilitate acts of terrorism. With proper safeguards, all are necessary tools in our response to the terrorism attacks and threats of future violence.

MILITARY TRIBUNAL

The Supreme Court has upheld military tribunals for unlawful belligerents charged with acts of war. The constitutionality of tribunals is not at issue. The relevant discussion is whether the policy is wise. As a former Justice Department official who supervised international terrorism cases, I know the President must have that option.

A federal trial in the United States would pose a security threat to the judge, prosecutors and witnesses, not to mention the jurors and the city in which the trial would be held. We do not have sufficient law enforcement personnel to provide these trial participants round-the-clock armed protection, the type of security still in place for the federal judge who tried Sheik Rahman in 1993. A federal trial in the United States may preclude reliable evidence of guilt. When the evidence against a defendant is collected outside the United States (the usual situation for international terrorism investigations) serious problems arise for using it in a domestic trial. The American criminal justice system excludes evidence of guilt if law enforcement does not comply with certain procedures, a complicated system of rules not taught to the Rangers and Marines who could be locked in hand-to-hand combat with the putative defendants. For sure, the intricate procedures of the American criminal justice system are not taught to the anti-Taliban fighters who may capture prisoners. Nor to the foreign intelligence agencies and police forces who will also collect evidence.

At just what point is a soldier required to reach into his flak jacket and pull out a Miranda rights card? There are numerous evidentiary and procedural requirements of federal trials that demonstrate the folly of anyone thinking such trials should be used in wartime for belligerents. Below is a sampling of the legal questions facing the prosecutor:

Does the Speedy Trial Act start running when the combatant is captured? Should the Miranda rights be given in Arabic? Which dialect?

If the belligerent wants a lawyer and cannot afford one should she be sent at taxpayer expense to Kabul to confer with her client?

Does the requirement that an arrested person must appear before a federal magistrate within several days to enter a plea apply?

What happens when all the evidence showing guilt is not admitted because it was collected by a foreign police force using procedures not in compliance with United States Constitutional standards?

What happens when all the evidence showing guilt is not turned over to the United States because a foreign intelligence agency does not want to reveal sources and methods?

For evidence to be used against the defendant, how does the prosecution establish chain of custody, an impossible procedure on the battlefield?

In the aftermath of September 11, it is not necessarily true that an American jury would be the fairest deciders of guilt. If the judicial system thought Timothy

McVeigh could not get a “fair” trial in Oklahoma, where in the United States is there an impartial jury for September 11?

DETENTION OF ALIENS

Our federal investigators have been assigned a mission that requires Divine prescience: they are being asked to know when the Middle-Eastern Muslim with the box cutter and immigration violation is a potential murderer or a peaceful, loving husband.

Law enforcement is charged with preventing future attacks, a task burdened with quick decisions and instant analysis. Law enforcement is also charged with investigating the crime, a task calling for thorough, thoughtful investigation. Sometimes the two tasks occur simultaneously with the same person as the subject. Unfortunately, there are times law enforcement gets it wrong as they did with Ali AlMaqtari. But, ultimately the system worked and he was released.

The responsibility of the U.S. government is to establish and follow procedures to ensure the detainees have access to counsel so that cases lacking evidence proceed swiftly through the process. The cure is not to release detainees back out on the streets of America when suspicious conduct remains unchecked. The solution is to make the process responsive so any irregularities can be brought to the attention of the Department of Justice or Congress, if the Department does not resolve the problem. All detainees charged with crimes should have counsel, paid for by U.S. taxpayers if appropriate. All detainees charged with immigration violations should have access to counsel and be provided lists of pro bono attorneys if they cannot afford one.

MONITORING INMATE CONVERSATION WITH COUNSEL

Perhaps we could find points of agreement on this issue. I suggest the following: The attorney-client privilege was created as integral to the Sixth Amendment right to counsel.

The attorney-client privilege is not absolute.

The attorney-client privilege protects only discussions about legal matters. If an inmate uses his or her counsel to further a crime, specifically an act of terrorism, there is no privilege for the conversation.

If the government has credible evidence an inmate is using his or her lawyer to abet a terrorist plot it has the responsibility to learn of the crime and must act to prevent it.

Government conduct should not chill an inmate's right to counsel for all matters legal.

The problem is how to balance the government's responsibility to protect Americans from terrorism without chilling legitimate counsel conversations. The Attorney General established safeguards to protect privileged communication where, based on credible information, there is evidence the attorney-client relationship is being misused to further terrorism. Those safeguards are as follows:

The inmate must be subject to SAM (special administrative measures), which is a prior finding the inmate's "communications or contacts with persons could result in death or serious bodily injury. . .or substantial damage to property that" includes "risk of death or serious bodily injury. . . ." The inmate must also be detained in a terrorism related case.

The Attorney General must receive information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe a particular detainee may use communications to further or facilitate acts of terrorism.

The Attorney General must make a separate finding of reasonable suspicion to believe the communications may be used in furtherance or to facilitate terrorism.

Before monitoring begins, the inmate and counsel must be given notice of the monitoring.

The monitoring personnel cannot be involved in the underlying investigation.

The monitoring personnel shall use procedures to minimize hearing privileged conversations.

Unless disclosure has been approved by a federal judge, the monitoring personnel shall not disclose any information except where violence is immi

nent.

In addition to these guidelines, I suggest the following be considered:

Upon notice of potential monitoring, the detainee could be given the option to change counsel to one having a government security clearance. Congress could pass legislation enabling a FISA like court (or, without legislation, use the FISA court) to review the finding of reasonable suspicion to believe the inmate may use communications to further acts of terrorism. No matter what judicial-type body is used, the standard should not be the more onerous probable cause of a Title III wiretap.

Senator FEINGOLD. Now we turn to Gerry Goldstein. He is a highly respected criminal defense lawyer, past President of the National Association of Criminal Defense Lawyers and was named outstanding criminal defense attorney by the State Bar of Texas in 1991. Mr. Goldstein represents Dr. Al-Badr Al Hazmi, a radiologist in Texas who was detained in connection with the September 11 attack investigation. I thank you also for joining us and you may proceed.

STATEMENT OF GERALD H. GOLDSTEIN, ESQ., GOLDSTEIN, GOLDSTEIN AND HILLEY, SAN ANTONIO, TEXAS, ON BEHALF OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

Mr. GOLDSTEIN. Thank you, Mr. Chairman, distinguished members of the Committee.

Let me begin by responding briefly to the able and eloquent colleague who spoke on the previous panel and described the inscription at the base of the Statue of Liberty. Perhaps in retrospect we should amend that inscription to, bring me your poor, your huddled masses, and we will jail them as illegal aliens, subject them to secret proceedings, and eavesdrop on their conversations with their lawyers.

My concern in this process is the description that I keep hearing from the Department of Justice, lawyers who I have known and respect, that no one's right to counsel has been interfered with. On September 12, the day after these tragic events both in our country's capital and the City of New York, I was retained to represent Dr. Al Hazmi, who at some 5:00 a.m. in the morning-he is a radiologist in residency at the University of Texas Health Science Center. He was studying those early morning hours for his medical boards. They were two days hence. Federal agents entered his home, searched for some six hours, and took him into custody.

Later that afternoon on September 12, he was allowed a brief telephone call to my office. He told me that he was in immigration custody and requested that I ascertain why he was being held. The phone was immediately taken by an INS special agent, who advised me that he could give me no other further information, including the whereabouts of where my client was being held, and referred me to a supervising agent.

I then immediately began telephoning that supervising agent that afternoon and the next day. There is a letter which the Committee has as part of my testimony, which I appreciate and acknowledge has been made a part of the record, and expressed my concern about the whereabouts of my client and requested an opportunity to speak with my client, and at that time, that supervising agent advised me that he would be unable to give me any information about my client, the reasons for his detention or his

whereabouts, and, in fact, referred me again to an attorney with the Immigration Service Trial Litigation Section.

My client advises that he repeatedly requested an opportunity to speak with his counsel, to talk to his wife and call his wife, that those requests were denied. Rather than facilitating those requests, the request to speak with his counsel, in fact, the government agents, in this case, FBI agents, continued to interrogate my client, and I think all lawyers would agree, in clear violation of Edwards v. Arizona and Minnick v. Mississippi.

I then hired an immigration lawyer, an able lawyer by the name of Bob Shivers, who is a member of Mr. Boyle's association, and both of us, Mr. Shivers and I, filed Form G-28 notices of representation on behalf of Dr. Al Hazmi. So the government now had a letter and our formal notices of appearance.

In the meantime, the immigration lawyer notified on September 14 the Director of Immigration Service for our district. He sent a letter to him detailing our efforts to find our client, locate his whereabouts, and consult with him, as he had requested.

When I reached the supervising agent finally the next day, he advised me that he would be unable, again, to give me any information and I received a return call from the attorney with the Litigation Section. He advised, as well, that he could not speak to me about my client, could not give me any information with respect to his whereabouts or why he was being retained.

Thereafter, the District Director of Immigration did call us back. He advised us that he, as well, could not give us any information about why our client was being detained, but informed us that by this time, our client had been, as he put it, removed from the jurisdiction.

I then sent a letter to the appropriate Department of Justice officials, including the Assistant United States Attorney who I had been advised was assigned the case, again, detailing our efforts to speak with our client, our desire to locate his whereabouts, which we still did not know other than he had been taken out of our jurisdiction, and our need to consult with him.

Some three days later, I was informed that my client had been taken by FBI agents by airplane from San Antonio, Texas, to the detention facility in Lower Manhattan in New York City. I then immediately retained a local attorney, another former President of the National Association of Criminal Defense Lawyers, in an attempt to contact my client. However, he was informed the following day when he went to the detention facility in Manhattan that, in fact, he would not be allowed to see my client because the court had appointed another attorney to represent my client, I might add, without my client's knowledge.

What concerns me, in closing, is that the Department of Justice has denied that-by the way, four days later, on September 24, my client was cleared by the FBI and released. What concerns me is the statement that no detainees have been held incommunicado, suggesting that any interference with the right to counsel has been due to time constraints and administrative shortcomings.

Dr. Al Hazmi was not someone who simply slipped through the bureaucratic cracks. He was someone whose lawyers had entered a formal notice of appearance and representation, whose lawyers

had communicated in writing with the appropriate investigative agencies and the Department of Justice of their concerns, of their desire to locate and know the whereabouts of their client, of their interest in consulting and speaking with their client. But rather than facilitating these requests, the FBI sends us on a wild goose chase, as did the Immigration Service and the Department of Justice officials, while they continued their interrogation.

I might add that by denying Dr. Al Hazmi access to his retained counsel, Federal law enforcement officials not only violated his rights and perhaps would have jeopardized a prosecution had he been guilty of something, but perhaps more important to them, they deprived themselves of valuable information and documents that we had that would have explained many of the concerns that they later expressed.

Senator FEINGOLD. Mr. Goldstein, I have to ask you to conclude. Mr. GOLDSTEIN. In essence, they prolonged the investigation and wasted valuable time at a time they had very little time to spare. Senator FEINGOLD. I thank you very much for your testimony. [The prepared statement and attachments of Mr. Goldstein follow:]

STATEMENT OF GERALD H. GOLDSTEIN, ATTORNEY, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, SAN ANTONIO, TEXAS

Gerald H. Goldstein, of San Antonio, Texas, is a Past President of the National Association of Criminal Defense Lawyers (NACDL) and its Texas affiliate. He graduated from Tulane University in 1965, and then attended the University of Texas School of Law. Since graduating in 1968 from law school, he has dedicated his practice to the representation of those accused of criminal offenses. He is a certified Specialist in Criminal Law, and a Fellow in the American College and the International Academy of Trial Lawyers.

His law firm, Goldstein, Goldstein & Hilley, devotes approximately 15-20% of its time to pro bono work. He has served as counsel in numerous civil rights cases, many of which vindicated the rights of prisoners to be free from excessive (and sometimes fatal) force, inadequate medical care, and inhumane living conditions. He has also served as appellate counsel for death row inmates and has defended the First Amendment rights of farmers and religious organizations. In several important matters before the United States Supreme Court, he has served as counsel of record for the National Association of Criminal Defense Lawyers as amicus curiae. In addition to his practice, for the past twenty years he has served as adjunct professor of advanced criminal law at the University of Texas School of Law in Austin, Texas, and St. Mary's University School of Law in San Antonio, Texas. He is a member of the Board of Regents of the National Criminal Defense College and lectures frequently on criminal law and procedure at continuing legal education seminars throughout the United States.

Mr. Chairman and Distinguished Members of the Committee:

In the early morning hours of September 12, 2001, Dr. Al-Badr Al Hazmi, a fifthyear radiology resident at the University of Texas Health Science Center in San Antonio, Texas, was studying for his upcoming medical board exams, when federal law enforcement agents entered his home, searched the premises for some six hours, and took Dr. Al Hazmi into custody. Immigration authorities transported Dr. Al Hazmi to the nearby Comal County Jail.

Later that afternoon, Dr. Al Hazmi was allowed a brief telephone call to my office, at which time he explained that he was being held by United States Immigration authorities and inquired as to the reasons for his detention. Almost immediately, an Immigration and Naturalization Agent took the telephone and told me that he could provide no information regarding the reason for my client's detention, nor his whereabouts; he then referred me to his "supervisor."

After my numerous telephone calls to the supervising agent on September 12th and 13th went unanswered, I wrote a letter to the Immigration and Naturalization Service, seeking to ascertain the whereabouts of my client and requesting an opportunity to communicate with him. In no uncertain terms, my letter explained: