propriation three days after September 11th of $40 billion, and subsequent action in providing an antiterrorist bill.

The question arises as to the scope of what our response will be and that is a matter which the Constitution gives to the Congress, the exclusive authority to establish military tribunals. Now, Congress has delegated some authority to the President and it is cited in the President's Executive order, and it provides that there shall be, this is the statutory language, "procedures to be prescribed by the President, which shall so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in United States District Courts.'

So that is the President's authority to follow the regular rules of evidence unless it is impracticable to do so. And that is the issue which requires some analysis. It was surprising to me that the Attorney General did not consult with any member of this Committee. A year ago he sat on this side of the bar of this Committee. We have your statement that it is necessary to be aggressive and hard-nosed. I agree with you completely about that. On this dias you have quite a number of former prosecutors who have been charged with or perhaps complimented as being aggressive and hard-nosed.

Where you have the Executive order providing skeletal outline which authorizes conviction by a two-thirds vote of a quorum, in military court martial if you have a sentence of 10 years or more, requires a three-quarters vote. If you have the death penalty, it requires a unanimous verdict. And I do believe that the kind of conduct we are calling for here calls for the death penalty. There is no provision in the Executive order for a judicial review. The traditional lines of going into Federal Court have been eliminated with only review provided by the President or by the Secretary of Defense. The rules of evidence have been abrogated so that evidence may be admitted and if it is considered to have probative value by a reasonable person.

The sequence of proceedings under the detention line provided that a rule was signed into effect on October 26th. It went into effect on October 29th without any customary comment period, and then it was published in the "Federal Register" on October 31st. And here again a question arises as to consultation or at least notification of the Committee.

There is in the public media very substantial critical comment by former FBI Director Bill Webster and other FBI officials about the procedures which are being utilized, all of which leads to the thought that these really are vital matters. We want to be sure that no stone is left unturned, and that the Department of Justice or the Department of Defense have every tool available.

What I would like you to comment on is the sequence for the detention order, as to whether the rules were followed as to a comment period, and also as to the specifics on the Executive order as to certain key points. In your statement you say that the right to counsel is preserved. I would be interested to have you show me that in the Executive order.

The Executive order has a provision that the regulation shall provide as to the "qualifications of attorneys." I would be interested to see where in the Executive order there is a right to counsel, and

what you consider to be the area of need, because if you can show it, I am going to back you up all the way, but I would like to see what you consider to be the area of need for the two-thirds vote; for the absence of traditional judicial review; for the absence of proof beyond a reasonable doubt, the customary standard which is omitted; and the modification of the rules of evidence, as I have earlier noted, in the context that the statutory delegation by the Congress requires the customary rules of law and evidence as are used in the District Court unless there is a showing that it is impracticable, and that is what I would like to hear you describe.

Mr. CHERTOFF. I would be happy to, Senator, and again, I hope I will respond to all the issues you have raised, and of course, if I miss something and you remind me, I will address it.

First of all, let me say there is nothing about what the President has done or the Attorney General has done that is in any way, shape or form meant to suggest that Congress has been in any way remiss in being a full partner in this war on terrorism. Everybody is very mindful and appreciative of the diligent and speedy workSenator SPECTER. How can you talk about full partnership when nobody let us know that this Executive order was coming down?

Mr. CHERTOFF. At the same time, Senator, there are responsibilities which the President has as Commander-in-Chief, which if I can address briefly, may help put this in context. I think that the source of the President's power, as I understand it, to authorize military commissions comes from Article II of the Constitution. Interestingly, Congress itself recognized this preexisting source of power when it passed Title 10 U.S.C. Section 821, which embodies the Uniform Code of Military Justice. That provision says in relevant part, because it establishes courts martial, quote: "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." And when the Supreme Court address that provision in the Madsen case at 343 U.S., the Court determined that the effect of this language was to preserve for commissions the existing jurisdiction which they had over such offenders and offenses based on the preexisting practice under the laws of war.

So I think that Congress itself, when it passed what is now codified in Section 821, recognized this inherent power of the Commander-in-Chief, and it has been recognized not only in international law but in our own practice literally since the days of George Washington, who authorized a military commission I think in the latter part of the 18th century to try Major Andre for espionage.

So in terms of the source of this authority, I think it is a constitutional source of authority.

Now, as far as the particular rules are concerned, I think there I have to point out that we are, that the Department of Defense is currently in the process of putting those rules together, and I have no doubt that in drafting those rules, the Department of Defense is going to be mindful of what Congress has prescribed, of what their own practices have been, of what the history has been with respect to the rules and

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Senator SPECTER. Is the Department of Justice involved with the drafting of those rules?

Mr. CHERTOFF. The President has committed the responsibility for drafting these rules in the first instance to the Department of Defense.

Senator SPECTER. So the answer is no.

Mr. CHERTOFF. At this point the answer is the Department of Defense is

Senator SPECTER. It seems to me the Department of Justice ought to be involved. Yours is the department which has the traditional longstanding experience here.

Mr. CHERTOFF. Well, Senator, I can assure you that at any point in time that the Secretary of Defense requests the assistance of the Department of Justice, which he is of course entitled to do under the President's order, the Department of Justice will be more than happy to render any assistance that we can.

But let me also point out the President's order sets forth a minimum that has to be met, not a maximum. It is envisioned that the skeleton which the President set forth in this initial order is going to be fleshed out by the Department of Defense, that they are going to address issues such as what the burden of proof is going to be, precisely how the evidential rules will be implemented. In fact, even the provision that talks about conviction upon the concurrence of two-thirds of members of the commission sets a minimum requirement. Nothing in this precludes the Secretary of Defense from looking to traditional practice including traditional practices in courts martial, and determining that for certain types of punishment there should be a higher level of unanimity.

So none of this is foreclosed. And I think, frankly, Senator, one of the virtues of this hearing, and I envision other hearings, is that it will provide a further fund of information from which the people who are preparing the regulations can draw as they finalize what they are going to do. So this is merely a point of departure. This merely starts the process, and I think in so doing, it is consistent with the practice that Franklin Roosevelt used when he triggered the similar power in the mid 1940s in the Quirin case. He merely initiated the process with a bare-bones order, and then, as was customary practice, the military officers fleshed out the details and the actual procedures. So we are beginning the process. The process is under way. It is not concluded, at least as far as I understand it. And I think all of these matters, I am confident, will be considered by the people who are putting these rules together.

Senator SPECTER. Does that mean you are going to come back and consult with us before anything is implemented?

Mr. CHERTOFF. Well, I am hesitant to speak for the Department of Defense. I think they have the responsibility to carry forward with this, and I think for me to speculate about how they are going to do it or who they are going to consult really takes me out of my area of jurisdiction.

Chairman LEAHY. But the Senator from Pennsylvania raises a valid point, that you are and you represent the chief law enforcement agency of our Government and the one that has to eventually determine whether things are done legally.

Mr. CHERTOFF. There is no doubt about that, and as the President's order makes clear, the Secretary of Defense is authorized to draw upon our expertise or anybody else's.

Senator SPECTER. Mr. Chertoff, I would hope you would not wait for an invitation.

Mr. CHERTOFF. I think we are capable of making our voice heard when necessary.

Senator SPECTER. Well, this Committee did not wait for an invitation. We called for the hearings. We called you. Use your telephones. Call them up. Tell them you need to be involved. Tell them you have had a lot of experience as a tough hard-nosed prosecutor. We know your background. We also know your record for protecting constitutional rights.

Chairman LEAHY. You do not have to mail us. I am having a little difficult with my mail these days, but—

[Laughter.]

Mr. CHERTOFF. We can fax and e-mail as well.

Chairman LEAHY. Yes. In fact, I am urging the terrorists to fax their anthrax letters to me from now on. But you can assure the Attorney General that this question will be asked, if not by Senator Specter, but by others when he gets here.

Senator FEINGOLD.

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

Senator FEINGOLD. Thank you very much, Mr. Chairman. I want to thank you very much for scheduling this series of hearings. It is obviously an extremely important function of the Committee to engage in oversight of the Department of Justice, and it is particularly crucial now given the enormous effort that the Department is making to investigate the horrific attacks of September 11th, and also to prevent future acts of terrorism in this country, and I do want to thank the ranking member, Senator Hatch, for joining in the Chairman's request that the Attorney General appear before this Committee.

I do thank you, Mr. Chertoff for being here, and appreciate you coming. But I do think that the kinds of questions that are being raised about the Department's conduct are best answered by the person in charge, the Attorney General. I look forward to his appearance before this Committee next week, and I urge that that appearance be one where all members get a chance this time to ask questions for a reasonable period of time, which is not what happened when we considered, however briefly, the USA PATRIOT Act.

As many of my colleagues have suggested in their questions so far, there really are serious questions as to the legitimacy, the effectiveness, and even the constitutionality of several of the steps that the administration is carrying out with regard to this investigation. The one thing that is clear so far today is that this is a bipartisan feeling, that consultation with Congress on some of the more controversial matters has been woefully inadequate. This is particularly true in the wake of the lightning speed with which we passed, over my objection, the USA PATRIOT Act. I hope this hearing, and those to follow, will, as others have said, encourage more

consultation, more discussion, and more cooperation with Congress, and I also hope that these sessions will help us educate the American people, and members of Congress, about what is being done in their name and under the authority that they have granted their Government. Only by working together can we ensure the effective administration of justice and also the protection of our most sacred civil liberties.

I would like to follow, Mr. Chertoff, with something that Senator Hatch brought up. As you know, I and others have been seeking information concerning the individuals who have been detained during the investigation of the September 11th attacks. I want to be clear. I do not necessarily object to detentions, per se. I simply believe that the identities of the detainees should be made public. Otherwise I do not how to answer a couple of questions. How can we know whether they have access to attorneys or have, in fact, been held incommunicado? How do we assess whether the Government is acting appropriately in detaining these individuals if we do not have any idea who they are?

Thus far the Justice Department has refused to provide most of the information I have requested, and I have not found the justifications for not providing the information terribly convincing. I continue to be deeply troubled by your refusal to provide a full accounting of everyone who has been detained and why. Yesterday, the Attorney General cited concerns for not wanting to provide the Al Qaeda network with a list of their members that we have in custody as a reason for not disclosing the names of the detainees. But then he freely disclosed a sampling of the names who have been charged with Federal offenses. And I would add to that, that in fact the identities of 104 people have now been released, who are charged with Federal crimes. We requested this information in a letter dated October 31, and we can now determine, in those cases, the conditions of their confinement and whether they are being represented by counsel. So I am pleased that you have released this information. It is long overdue. But it does not seem consistent with the other statements that the Attorney General has made. We still do not know who is in custody for immigration charges.

And although you say that no one is being held incommunicado, we do know that Dr. Al-Hazmi from San Antonio was held incommunicado for a week and a half. We are also aware of a lawyer in New York who states it took over a month to locate her client. He had been picked up and sent to New York for questioning.

And so it is difficult for me to understand exactly where the administration is coming from with these inconsistent statements. I simply disagree with the Attorney General's assertion that disclosing the identities of detainees will bring them into disrepute. I think that just the opposite is true. By failing to articulate who is being held and why, the families, friends, co-workers, and neighbors of those detained are simply left to believe the worst, that the detainee is somehow linked to the September 11th attacks. By failing to say who is believed to be a suspected terrorist and who is not, the Justice Department tarnishes the reputation of all, including those who have already been or later will be found innocent. It is my understanding that the identities of people who are in deportation proceedings are regularly made public. And so what I