Liberty vs. Security: An NPR Special Report

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Michael Chertoff

Michael Chertoff

Michael Chertoff, U.S. assistant attorney general, Criminal Division, in prepared testimony to the Senate Judiciary Committee Nov. 28, 2001:

Good morning, Mr. Chairman, members of the Committee. I welcome the opportunity to appear before you today to discuss the Department of Justice's response to the terrorist attacks of Sept. 11.

The country faces a truly extraordinary threat to our national security and the physical safety of the American people, one that has necessitated an extraordinary redefinition of our mission. The president and the attorney general have directed the Justice Department to make prevention of future terrorist attacks our top and overriding priority. We are pursuing that priority aggressively and systematically with a national and international investigation of unprecedented scope, but we are carefully doing so within established constitutional and legal limits.

Since Sept. 11, hundreds of federal prosecutors from the Department's Criminal Division and from U.S. Attorney's Offices across the country, along with thousands of federal, state, and local law-enforcement personnel, have been working tirelessly, above and beyond the call of duty, to carry out the investigation. We should all be grateful for their extraordinary efforts. At the same time, we owe a debt of gratitude to Congress for passing the USA Patriot Act which makes their work more efficient. In conducting the investigation, we are already taking advantage of the new tools and authorities provided by the USA Patriot Act to enhance our investigation. For example, we have, on a number of occasions made use of the new authorities relating to nationwide search warrants, and amendments to 18 U.S.C. 2703 that allow us to more efficiently obtain e-mail and other information from Internet service providers. Furthermore, we have also relied on the Act to begin expanding our sharing of information with the Intelligence Community.

I know from recent correspondence that the Department has received from members of this Committee that a number of you have raised important questions about some of the investigatory steps we have taken apart from the new legislation. I look forward during the course of this hearing to learning more about your specific concerns and to explaining -- to the extent I can without compromising the on-going investigation -- the reasons for the investigative approaches we have taken.

In my opening remarks, I would like to briefly outline the nature of the threat we are facing and explain why we believe the threat necessitates the type of investigative response we have been pursuing.

The images of Sept. 11 -- the planes crashing into the twin towers; the grieving and devastated faces of survivors, the heroism of the police, the firefighters and those passengers who were forced into the role of combatants against terrorists -- these images and many others have been permanently seared into our collective national consciousness. Each of us has personal recollections of that day where we were when we first heard, what our first thoughts were, what we did to see if our loved ones were safe. It is a day that each of us will always remember in his or her own way.

But as a nation, the overwhelming, brute fact of Sept. 11 is this: This country was wantonly and deceitfully assaulted by an enemy intent on destroying as many innocent lives as possible. Before Sept. 11, Osama bin Laden and his henchmen wanted to kill thousands of innocent American civilians. On Sept. 11, they succeeded. Since Sept. 11, bin Laden and his co-conspirators have brazenly announced that they will kill more of us. He and his followers actually believe they have a duty to kill Americans. And those are not my words; those are his words.

In a February 1998 directive, bin Laden ordered his followers "to kill Americans and plunder their money whenever and wherever they find it." Just last month, bin Laden made a video declaring to his supporters in the al Qaeda network: "Bush and Blair... don't understand any language but the language of force. Every time they kill us, we will kill them, so the balance of terror can be achieved." He went on: "The battle has been moved inside America, and we shall continue until we win this battle, or die in the cause and meet our maker."

So we have a terrorist organization with thousands of members and followers worldwide, which is fanatically committed to killing Americans on our own soil, through suicide attacks if necessary. And unlike the enemies we have faced in past wars, this is an enemy that comes not openly, but cravenly, in disguise. We know from what we have learned about the 19 hijackers from Sept. 11 and what we know about those responsible for earlier attacks against America that the terrorists in the al Qaeda network plan their terror years in advance. They are sophisticated, meticulous and very patient.

Of particular concern is their use of so-called "sleepers." A sleeper is a committed terrorist sent sometimes years in advance into a possible target location, where he may assume a new identity and lead an outwardly normal lifestyle, while waiting to spring into action to conduct or assist in a terrorist attack. Although it would be inappropriate for me to get into details of the pending investigations, I can give you an illustrative example of a sleeper from one of the 1998 embassy bombing cases.

Mohamed Sadeek Odeh was convicted early this year for participating in the August 1998 bombing of the U.S. embassy in Nairobi, Kenya. He was sentenced to life imprisonment in October. The evidence at trial established that Odeh was the technical advisor to those who carried out the bombing, having received explosives training at some of al Qaeda's terrorist camps in Afghanistan. One of the key pieces of evidence against Odeh was a memo book that had sketches of the vicinity of the embassy and what appeared to be a suggested location for the bomb truck.

The evidence in the case revealed that Odeh became a sworn member of al Qaeda in 1992 in Afghanistan and was subsequently sent to Somalia to train Islamic militants. In 1994, Odeh moved to Mombasa, a coastal town in southeast Kenya. Once in Mombasa, Odeh set up a fishing business with the help of Muhammad Atef, then military commander of al Qaeda. As part of this business, Odeh was given a large boat, which was to be used to transport fish along the Kenyan coast. According to at least one of the co-defendants, this boat was used to transport al Qaeda members from Kenya to Somalia in 1997 and was otherwise used for jihad.

Odeh got married in Mombasa in November 1994. Several individuals who later carried out the bombings of our embassies in Nairobi and Dar es Salaam attended the wedding. Between 1994 and 1997, Odeh maintained regular contact with various al Qaeda leaders, including Wadih El Hage and Mustafa Fadhil, two of the leaders of the East African cell of al Qaeda. In 1997, he was sent to Somalia once again to train Islamic militants.

After living in Mombasa for a few years, Odeh moved to Malindi, another coastal town in Kenya, and then later to a small village known as Witu, where he lived until August 1998. At all times, Odeh lived modestly and quietly. For example, in Witu, Odeh lived in a hut, where he had no telephone or other means of communication.

But when the time came to participate in plotting the embassy bombings, Odeh sprang into action. In the spring and summer of 1998, he met other al Qaeda members in Kenya and discussed ways to attack the United States. In the days immediately preceding the Aug. 7, 1998, embassy bombings, Odeh met repeatedly with al Qaeda members who participated in the bombing in Mombasa and Nairobi. Hours before the bombing, Odeh suddenly left Kenya, flying to Pakistan during the night of Aug. 6 and through to the early morning of Aug. 7. Odeh was detained at the Karachi airport (due to a bad false passport), and eventually returned to Kenya.

Odeh is just one example of how an al Qaeda member was able over time to integrate himself into the local environment in a way that made his terrorist activities much more difficult to detect. Examples of other "sleepers" can be found in the Millennium bombing case, which involved planned attacks against various U.S. facilities during the millennium, and in the 1993 World Trade Center bombing.

How can we combat the terrorists' use of sleepers? In many ways it is more difficult than trying to find a needle in a haystack because here the needle is masquerading as a stalk of hay. We could continue as before, and hope we get lucky as we did in the Ressam case. Or, as we are currently doing, we can pursue a comprehensive and systematic investigative approach, informed by all-source intelligence, that aggressively uses every available legally permissible investigative technique to try to identify, disrupt and, if possible incarcerate or deport sleepers and other persons who pose possible threats to our national security.

Without understanding the challenge we face, one cannot understand the need for the measures we have employed. Are we being aggressive and hard-nosed? You bet. In the aftermath of Sept. 11, how could we not be? Our fundamental duty to protect America and its people requires no less.

Yet it is equally important to emphasize that the detentions, the targeted interviews, and the other aggressive investigative techniques we are currently employing are all legal under the Constitution and applicable federal law as it existed both before and after Sept. 10. Nobody is being held incommunicado; nobody is being denied the right to an attorney; nobody is being denied due process. As federal prosecutors, we have great discretion under the Constitution and well-established federal law to decide how aggressively to investigate and charge cases. In light of the extraordinary threat facing our country, we have made a decision to exercise our lawful prosecutorial discretion in a way that we believe maximizes our chances of preventing future attacks against America.

Before responding to your questions, let me now turn briefly to four areas that I know are of particular interest to the Committee:

First, the number of persons who have been arrested or detained arising out of the investigation into the events of Sept. 11 and the conditions of their detention. As the attorney general indicated yesterday, there are currently 548 individuals who are in custody on INS charges and 55 individuals in custody on federal criminal charges. The department has charged 104 individuals on federal criminal charges (which includes the 55 in custody), but some of the indictments or complaints are under seal by order of court. Every detention is fully consistent with established constitutional and statutory authority. Every person detained has been charged with a violation of either immigration law or criminal law, or is being lawfully detained on a material witness warrant.

Every one of these individuals has a right to access to counsel. In the criminal cases, and the case of material witnesses, the person is provided a lawyer at government expense if the person cannot afford one. While persons detained on immigration charges do not have a right to lawyers at public expense, INS policy is to provide each person with information about available pro bono representation. Every one of the persons detained, whether on criminal or immigration charges or as a material witness, has the right to make phone calls to family and attorneys. None is being held incommunicado.

The identity of every person who has been arrested on a criminal charge is public. We have not released the names of persons being held on material witness warrants because they are issued under seal as related to grand jury proceedings in different districts. Finally, although the identity of INS detainees is not a secret, we have not compiled a public list of the persons detained on immigration charges, both to protect the privacy of those detained and for legitimate law-enforcement purposes. I emphasize, however, that there is nothing preventing any of these individuals from identifying themselves.

Second, law enforcement is seeking to interview just over 5,000 persons voluntarily. These are people who we believe may have information that is helpful to the investigation or to disrupting ongoing terrorist activity. The list of persons we wish to interview was developed as an effort to identify those who might have some information that could be helpful to the investigation. The list was assembled by using common-sense criteria that take into account the manner in which al Qaeda has traditionally operated. So, for example, persons have been identified for interview because they entered the United States with a passport from one of about two dozen countries, where al Qaeda typically recruits. Or people are identified for interviews because they entered the country on particular types of visas that terrorists appears to favor. Importantly, these persons are not suspects, but simply people with whom we want to talk because they may have helpful information.

Third, I would like to discuss the monitoring of attorney-client communications under a Bureau of Prisons regulation promulgated on Oct. 31. The Justice Department has amended a 1996 regulation that permits the monitoring of certain communications of inmates who are subject to special administrative measures. This regulation currently applies to only 16 of the 158,000 inmates in the federal system. Under this pre-existing regulation, a very small group of the most dangerous inmates are subject to special administrative measures if the attorney general determines that unrestricted communication with these inmates could result in death or serious bodily harm to others. When that determination has been made, restrictions are put on those inmates' ability to communicate with and contact others. The amendment promulgated on Oct. 31 extends the regulation to permit the monitoring of attorney-client communications for this very small and discrete group of inmates only if the Attorney General makes an additional finding that reasonable suspicion exists that a particular detainee may use communications with attorneys to further or facilitate acts of terrorism.

The regulation provides for important safeguards to protect the attorney-client privilege. First, the attorney and his client will be notified if their communication will be monitored. Second, the team monitoring the communications will have no connection with any ongoing prosecution that involves the client. Third, no privileged information will be retained by the persons monitoring the conversations; the only information retained will be unprivileged threat information. Fourth, absent an imminent emergency, the government will have to seek court approval before any information is used for any purpose from those conversations. And fifth, no information that is protected by the attorney-client privilege may be used for prosecution. This regulation accords with established constitutional and legal authority. Courts have long recognized that a client's communications are not privileged if they are in furtherance of criminal activity. And the Supreme Court has expressly recognized that the government may, consistent with the right to counsel, monitor attorney-client communications if there is a legitimate law-enforcement reason for doing so and if privileged communications are not used against the defendant. Both those conditions are met here.

Finally, I'd like to briefly mention military commissions. We are at war: Our homeland was suddenly and deliberately attacked from abroad on Sept. 11, resulting in the intentional murder of thousands of unarmed civilians. Osama bin Laden has candidly said he intends to continue his attacks as long as he and his organization are able. In view of such circumstances, military commissions are a traditional way of bringing justice to persons charged with offenses under the laws of armed conflict. The Supreme Court has repeatedly upheld the use of such commissions.

The use of such commissions is not only legally proper; there may be sound policy reasons to employ it in individual cases. Proceedings before military commissions may be needed to safeguard classified information at the trial of particular members of al Qaeda . Also, military commissions are equipped to deal with the significant security concerns that can arise from a trial of the terrorists. We are all aware that trying terrorists in our cities could place judges and juries -- and, indeed, the cities themselves -- at risk. Finally, bear in mind that the attacks of Sept. 11 were launched by a foreign power and killed thousands of innocent people. These were war crimes, in addition to domestic crimes. There is nothing inappropriate or unfair in trying war crimes as they often have been tried -- before military commissions.

The president's order represents just the first step in invoking this traditional power to prosecute those who violate the well-settled law of war. The order assigns the Department of Defense primary responsibility for developing the specific procedures to be used. Because that process is still ongoing, it is simply too early to discuss the specific details of how any such commissions would operate. However, certain protections are already built into the order, which can be expanded upon by regulations promulgated by the Defense Department. The order specifies that all persons will have the right to an attorney. The order specifies that the proceedings must allow a full and fair trial of the charges. In addition, the order requires humane conditions of pretrial detention, including the right to free exercise of religion during detention. And notably, the president will himself make the determination whether trial by commission will be appropriate in an individual case.

Michael Chertoff is U.S. assistant attorney general in charge of the Justice Department's Criminal Division. Previously he was a partner with Latham and Watkins in Newark, N.J. Before joining that firm, he served as the U.S. Attorney for New Jersey from 1990 to 1994. He is a graduate of Harvard University and Harvard Law School.

Other Voices

Philip Heymann, James Barr Ames Professor of Law at the Harvard Law School and former deputy U.S. attorney general.

Griffin Bell, senior partner of Atlanta's King & Spalding law firm and former U.S. attorney general.

Kate Martin, director of the Center for National Security Studies, a non-governmental advocacy and research organization.

Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee.

Sen. Orrin Hatch (R-UT), ranking Republican on the Senate Judiciary Committee.