Eisentrager, 339 U.S. 763 (1950) would preclude judicial review by the Article III courts over such commissions held overseas. The concept of military commissions sitting in this country is another matter.

The administration has evidenced frustration with what it perceives to be restrictions and limitations that seemingly hinder prosecutors in attempting to bring terrorists to trial in our federal district courts. Mention has been made of the rules governing disclosure which would compel release of sensitive intelligence information. The lengthy trials of those convicted of the 1993 bombing of the World Trade Center and the 1998 attacks upon our embassies in Africa are cited as examples of the inability of the federal district courts to adequately cope with trials of terrorists. Further, it is argued that a criminal justice system which incorporates rehabilitation and reincorporation into society as part of the sentencing process is ill-suited to deal with those whose zealous religious beliefs idealize martyrdom. I suggest that these arguments are not necessarily persuasive. Congress has provided tools for prosecutors to deal with classified information in criminal trials, notably the Classified Information Procedures Act, 18 U.S.C. App §1 et seq. (1980), and the two prior successful convictions of al-Qaeda terrorists are indicative that it can be done, no matter how problematic for prosecutors the trials may be.

As to the option of using international tribunals, I concede that no existing tribunal has jurisdiction over the terrorists. Neither the ad hoc tribunal for the former Yugoslavia, nor the one for Rwanda, could prosecute terrorists without the United Nations Security Council having to make specific amendments to either of their respective charters. The International Criminal Court, a UN sponsored treaty-based tribunal, is not yet in existence and, even if a sufficient number of states were able to quickly ratify the Rome Treaty, that tribunal has only prospective jurisdiction. Lastly, although the United Nations Security Council could create yet another ad hoc tribunal for the specific purpose of dealing with terrorist acts, any such attempt would surely founder because of the inability of the international community to agree upon a definition of "terrorism”—a flaw that greatly restricts the feasibility of using any international tribunal for this purpose. Thus, international tribunals do not provide us with a current, viable forum for prosecuting terrorists.

The third option, trials by other countries under the jurisdictional principle of universality, is not well-suited to the United States for policy reasons. I agree with critics of this option that America needs to be directly or at least indirectly involved in the prosecution because the attack upon our people and our facilities occurred within our country and we clearly have the greatest interest in prosecuting those responsible for or complicit in the attacks. Further, the opportunity for capital punishment, and its arguable deterrence value, is greatly diminished when other sovereigns conduct the prosecutions within their own countries. This potential choice of forum is the least practical.

Acknowledging that none of the prosecutorial forums is optimal, but that the two most feasible are trials in our federal district courts and trials by military commission, the President clearly signaled his intent on November 13th to use the latter. I suggest that this choice may entail costs which outweigh the benefits, notably with regard to commissions sitting in this country. I believe we should be cognizant of a potential adverse impact upon our international credibility, as well as a tarnishing of the image of 50 years of military Justice under the UCMJ.

It was but five years ago that the United States roundly condemned the conviction by a military tribunal in Peru of New York native Lori Berenson on charges of terrorism. Through official channels, we requested that she be retried in a civilian court because of the lack of due process afforded her in the tribunal. Our cries of unfairness were echoed by United Nations officials who openly criticized Peru's antiterrorism military courts. There seems little difference in the measure of due process afforded Berenson in Peru and what is called for under the President's military order, and I believe this opens us to a charge of hypocrisy from the international community. The force of this criticism could be lessened if those who advise the Secretary of Defense counsel him to ensure a high level of due process in the regulations establishing the commissions, but the charge laid against us can never be totally ameliorated. Consequently, I believe our use of military commissions may result in a fracturing of the large and disparate coalition which has been put together to wage the long-term campaign against terrorism worldwide, a campaign which must necessarily involve far more than the use of military force. As to my second point, my sense is that the American people do not accurately perceive the distinction between courts-martial under the military justice system and military commissions which could be empaneled under the President's order. I have heard it said on radio talk shows that if military commissions are good enough for our servicemen and servicewomen, then they are certainly good enough for terrorists. Even former Deputy Attorney General George Terwilliger, on this past Sunday's news program

Face the Nation, said that "there is a fundamental misconception that somehow a military court cannot be just. Our own soldiers and airmen are subject to military justice on a regular basis. The military can provide fair trials." This suggests to me that a segment of the American people, having perhaps become acquainted with military justice through the portrayal of courts-martial on television or in the movies, believe that military commissions will generally follow the same rules of procedure and modes of proof. This Committee knows that is not so. There is a marked contrast in the protections afforded our service personnel under the military justice system, and the lack of due process in military commissions. To illustrate, there is a guarantee of judicial review under the former; that is specifically denied under the latter. Although courts-martial may, under certain circumstances be closed to the public, the evidentiary rules and burden of proof required for conviction are virtually identical to those in our federal district courts; that is not the case in military commissions. In other words, the two systems have little in common, and this must be made clear as the debate on the propriety of using military commissions continues.

In the final analysis, the decision is one for the President to make, and he has already indicated the probable path he intends to pursue. I believe, however, that hearings such as are being conducted by this Committee will allow for a broad and balanced airing of views on this issue, not only to hopefully better inform the Members in both chambers, but also to give the Administration the benefit of additional voices in the debate. This should, and must, be done before the first terrorist is brought to trial.

Mr. Chairman, Senator Hatch and members of the Committee, thank you again for inviting me to share my concerns with you. I look forward to answering any questions you might have.

Chairman LEAHY. Thank you very much, Professor. I appreciate that, and I also appreciate very much you making that very needed distinction between these tribunals and our well-established-you were a colonel in the military, and you know the well-established rules of military tribunals.

Ms. Martin, thank you very much, and, again, I appreciate you spending so much time here with us today. Please go ahead and testify.

STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR
NATIONAL SECURITY STUDIES, WASHINGTON, D.C.

Ms. MARTIN. Thank you, Mr. Chairman, and I thank the Committee for the opportunity to appear today, and I particularly want to thank the chairman for convening this extraordinarily important series of oversight hearings.

The Government's efforts to identify the perpetrators of the terrible attacks on September 11th and to prevent future attacks before they occur could not be more crucial. But we have become increasingly concerned that, instead of conducting a focused and effective law enforcement investigation, the Government has turned instead to a number of radical and overly broad measures that threaten basic rights without in turn providing any increased security.

While some have cast the terrible situation we find ourselves in today as one in which we must decide what liberties we are willing to sacrifice for an increased measure of safety, I do not believe that is an accurate or helpful analysis. Before asking what trade-offs are constitutional, we must ask what we gain in security by restricting our civil liberties.

The common thread in the Justice Department's recent actions in detaining individuals, providing for eavesdropping, and the President's order on military commissions is the secrecy and lack of public and congressional participation in adopting those meas

ures. It is only by forcing the Government to articulate why and how particular restrictions on our liberties will contribute to security that we can have any guarantee that the steps being taken will, in fact, be effective against terrorism.

The hearing today I believe is the crucial first step in that open and public dialogue which to date has been prevented by the administration's unilateral actions.

I want to talk briefly, I think, about the detentions and only for a moment about military commissions. As this Committee is well aware, in the past couple of months more than 1,000 people have been detained according to the Justice Department. Some 600 people are still in detention. At the same time, law enforcement officials have on several occasions been careful to state that only a handful of those individuals, maybe 10 or 20, have in any way been tied to the hijackers from September 19th or other members of Al Qaeda or bin Laden. Hundreds of others are currently in jail. While the Department asserts that their rights are being respected and that it has complied with all applicable constitutional and legal limits, it has until yesterday refused to release that information which the public and this Committee needs to assure ourselves that that is, in fact, the case.

While we welcome the disclosures of the Attorney General yesterday, giving some partial information about the individuals who have been detained, we join in Senator Feingold's request and demand for a full accounting of everyone who has been detained.

There are certainly numerous press accounts which, if accurate, raise serious questions about whether or not individuals' rights have been violated in serious and unconstitutional ways. Most specifically, it appears that perhaps ten, perhaps hundreds of individuals, including United States citizens, have been held for weeks, if not months, in jail when the FBI and the Government has no information connecting them in any way to the September 11th attacks. There are examples, some of them I am sure the Committee is aware of. Perhaps the most egregious one is the two American citizens who were held in jail, a father and a son, one for several weeks and one for several months, on charges that they possessed suspicious passports. A Federal judge finally had an opportunity to look at it, and it turned out that the plastic on the passport had split, presumably because of age. The key factor, it would appear, in those people spending time in jail while the FBI is conducting an investigation appears to be their Arabic-sounding name, despite their U.S. citizenship.

The Justice Department has defended the detentions by saying that all the individuals now in custody have been charged, either under the criminal law or as immigration violations. I think the question that this Committee needs to ask and the public needs to be assured about is: On what justification are such individuals held in jail before there has been a trial convicting them either on a criminal charge or having violated the immigration laws?

What we are especially concerned about that appears to be happening is that people who have been arrested are being excuse me. The Justice Department has made an effort that when people are arrested on either immigration or criminal charges, has urged all of the authorities that bail should be denied and as a blanket

matter has urged that they be kept in jail pending trial. That obviously raises serious concerns about imprisonment without there being adequate probable cause of a crime and without meeting the constitutional standards.

I just want to mention one thing, if I might. On the material witness warrants, Mr. Chertoff said that he was prohibited from identifying those individuals who were being held. I don't believe Rule 6(e), governing grand jury secrecy, says anything about not disclosing the number of individuals held on a material witness warrant. I might also mention that there has been information disclosed to the press about not only the identities of the core suspects, but the evidence against them.

Perhaps in the question period I might have an opportunity briefly to discuss military commissions.

[The prepared statement of Ms. Martin follows:]

STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL SECURITY STUDIES Thank you Mr. Chairman and Vice-Chairman for the opportunity to testify today on behalf of the Center for National Security Studies. The Center is a civil liberties organization, which for 30 years has worked to ensure that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security must and can be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights. In our work on matters ranging from national security surveillance to intelligence oversight, we begin with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so, solutions to apparent conflicts can often be found without compromising either.

We commend the Committee for holding this series of oversight hearings to examine how the Justice Department can persevere our freedoms while defending against terrorism. After the scheduled examination of the Department's current initiatives and activities in investigatng the September 11 attack, we urge the government to next examine how the Department of Justice intends to implement the new authorities granted in the USA PATRIOT Act.

Certainly, there is no greater government responsibility today than to work to prevent future terrorist attacks like those on September 11. The Attorney General and the FBI Director share the enormous responsibility of carrying out an effective investigation to prevent more attacks. Of equal importance is Congress' responsibility to conduct oversight of that investigation to protect our security and to protect the Constitution.

While some have cast the terrible situation we find ourselves in today as one in which we must decide what liberties we are willing to sacrifice for an increased measure of safety, I do not believe that is an accurate or helpful analysis. Before asking what trade-offs are constitutional, we must ask what gain in security is accomplished by restrictions on civil liberties. It is only by forcing the Justice Department to articulate why and how particular restrictions will contribute to security and that we can have assurance that the steps being taken will be effective against terrorism. This hearing today is the beginning of that essential inquiry.

Immediately following the September 11 attacks, we, along with more than 140 organizations from across the political spectrum called for the apprehension and punishment of the perpetrators of those horrors. At the same time, we all recognized that we can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty.

The government's efforts to identify any perpetrators and to prevent future attacks before they occur could not be more crucial. But we have become increasingly concerned that instead of a focused and effective law enforcement investigation, the government has turned to a number of radical and overly broad measures that threaten basic rights without providing any increased security. We understand that this Committee intends to examine all of them and we welcome your efforts. We will address each briefly in turn.

LACK OF CONGRESSIONAL AUTHORIZATION OR CONSULTATION

A common thread in the recent Justice Department actions is the secrecy and lack of congressional consultation with which they have been carried out. In detaining

more than 1,000 individuals, in adopting a policy of eavesdropping on attorney-client communications, and in setting up a system of secret military trials and detentions, the administration has acted unilaterally without congressional participation or even consultation. By considering these actions in secret before adopting them, the administration prevented any public debate about their effectiveness. The lack of congressional notification is especially troubling in light of the administration's simultaneous request to the Congress to enact what was described as a comprehensive package of new authorities needed to combat terrorism passed as the USA PATRIOT Act. The administration's conduct calls into question its commitment to respecting the constitutional separation of powers and role of the Congress. Indeed, all of these actions would enhance the power of the Executive at the expense of the constitutional roles of both the Congress and the judiciary.

In the case of the new wiretapping policy and the military commission order, the lack of congressional authorization is fatal to the legality of those actions. Only the Congress, not the President, may legislate wiretapping standards or authorize military tribunals. The administration's edicts are invalid on that ground alone.

The lack of public discussion has now left us with restrictions on our liberties without any increase in our security. Only through an open and public dialogue involving the Congress, the Executive, and the American people can we find a solution that advances both national security and civil liberties. The unwillingness of the government to engage in a public or constitutional dialogue, not about the details of the investigations, but about the constitutional rules governing that investigation has prevented that process. This Committee must now remedy that problem.

THE DANGERS OF EXCESSIVE SECRECY

In times of crisis, even more than in times of peace, a commitment to robust public debate is especially important. This is true for two reasons. First, the executive branch is more likely to take actions that violate basic civil liberties and thus an alert and informed public is necessary to counter-act that dangerous tendency. Second, the government is more likely to make effective decisions if there is an informed and influential public.

The government has the right, and indeed the obligation, to keep secret information whose disclosure would genuinely harm national security, interfere in an investigation, or invade the privacy of individuals. However, because public debate requires access to government information, the executive branch also has an obligation to release as much information as possible and to avoid taking actions that would chill essential public debate on national policy issues. Regrettably, the government has been seriously deficient on both accounts.

Almost as worrisome as the detentions of aliens since September 11 is the secrecy and veil of obfuscation that the government has thrown around its actions in blatant disregard of its affirmative obligations to provide information especially about actions in the criminal justice system, its obligation to inform Congress of its actions, and the requirements of the Freedom of Information Act (FOIA).

The Justice Department and the Attorney General have engaged in selective leaks of information about the detentions as part of their effort to calm the public and suggest that it is making progress in the investigation. At the same time, they have refused to provide the Congress and the public with the information to which they are entitled. Its response to FOIA requests about the detentions shows its cavalier disregard of the law. The FBI has responded that no information can be disclosed in response to the request despite the fact that much information has been in the press, clearly coming from the government. The Justice Department, after agreeing that the request deserved an expedited response because it involved a "matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity which affects pubic confidence," has failed to provide a substantive response.

More broadly, the Attorney General has sent the entire bureaucracy a clear signal by reversing the directive regarding discretionary release of information under FOIA as established by his predecessor. Instead of requiring that information be released except when its disclosure would result in some harm, Ashcroft has directed that information be withheld whenever possible under the statute, regardless of whether disclosure would be harmful or violate the public's right to know.

Although the directive cites the September 11 attacks as justification, it covers all government information, much of which has no national security or law enforcement connection whatsoever. It is clearly intended to send the message to the bureaucracy that instead of working with the public to share information that is rightfully theirs, the government should take advantage of the ambiguities in the law