Statement of Viet D. Dinh
Assistant Attorney General, Office of Legal Policy
Department of Justice
Committee on the Judiciary
United States Senate
December 4, 2001
Good afternoon, Mr. Chairman and Members of the Committee. Thank you for the
opportunity to testify today on the Department of Justices response
to the terrorist attacks of September 11 and our continuing efforts to prevent
and disrupt future terrorist activity.
September 11 was a wake-up call to America and, indeed, to freedom-loving
people around the world. To ensure the safety of our citizens and the security
of our nation against the threat of terrorism, the Department has undertaken
a fundamental redefinition of our mission. The enemy we confront is a multinational
network of evil that is fanatically committed to the slaughter of innocents.
Unlike enemies that we have faced in past wars, this enemy operates cravenly,
in disguise. It may operate through so-called "sleeper" cells, sending
terrorist agents into potential target areas, where they may assume outwardly
normal identities, waiting months, sometimes years, before springing into
action to carry out or assist terrorist attacks. And unlike ordinary criminals
the Department has investigated and prosecuted in the past, terrorists are
willing to give up their own lives to take the lives of thousands of innocent
citizens. We cannot wait for them to execute their plans; the death toll is
too high; the consequences are too great.
To respond to this threat of terrorism, the Department has pursued an aggressive
and systematic campaign that utilizes all information available, all authorized
investigative techniques, and all the legal authorities at our disposal. The
overriding goal of this campaign is to prevent and disrupt terrorist activity
by questioning, investigating, and arresting those who threaten our national
security. In doing so, we take care to discharge fully our responsibility
to uphold the laws and Constitution of the United States. All investigative
techniques we employ are legally permissible under applicable constitutional,
statutory and regulatory standards. As the President and the Attorney General
have repeatedly stated, we will not permit, and we have not permitted, our
values to fall victim to the terrorist attacks of September 11.
Before responding to your questions, I will speak briefly to three areas that
are of interest to this committee. First, the Departments detention
of individuals since September 11; second, the directive that our Anti-Terrorism
Task Forces conduct voluntary interviews of individuals who may have information
relating to our investigation; and finally, the Bureau of Prisons regulation
to permit the monitoring of communications between a limited class of detainees
and their lawyers, after providing notice to the detainees.
With respect to detentions, as of Monday, December 3, there are 608 persons
in federal custody on criminal or immigration charges growing out of our investigation
into the September 11 attacks. Of that total, 55 currently are being held
on federal criminal charges; the remaining 553 are being detained on immigration-related
charges. The Department has charged a total of 105 persons for violations
of federal criminal law. Some of those indictments or complaints have been
filed under seal by order of court. The names and charges against all others
have been publicly released. Every one of these detentions is fully consistent
with established constitutional and statutory authority. Each of the 608 persons
detained has been charged with a violation of either immigration law or criminal
law, or is the subject of a material witness warrant issued by a court.
Every one of these individuals has a right to access to counsel. In the criminal
cases and in the case of material witnesses, the person has the right to a
lawyer at government expense if the he or she cannot afford one. Persons detained
on immigration violations have a right to access to counsel, and the Immigration
and Naturalization Service provides each person with information about available
pro bono representation. Every person detained, whether on criminal or immigration
charges or as a material witness, has the right to make phone calls to family
members and attorneys. No one is being denied their right to talk to their
Under the Immigration and Naturalization Services generally applicable
procedures, detainees enjoy a variety of rights, both procedural and substantive.
Once taken into custody, aliens are given a copy of the "Detainee Handbook,"
which details their rights and responsibilities, including their living conditions,
clothing, visitation, and access to legal materials. In addition, every alien
is given a comprehensive medical assessment, including dental and mental-health
screenings. Aliens are informed of their right to communicate with their nations
consular or diplomatic officers, and the INS will notify those officials that
one of their nationals has been arrested or detained. Aliens are permitted
access to telephoneswhich they may use to contact their family members
or attorneysduring normal waking hours. Finally, Immigration Judges
preside over legal proceedings involving aliens, and aliens have the right
to appeal any adverse decision, first to the Board of Immigration Appeals,
and then to the federal courts.
Second, let me address the Justice Departments plan to conduct voluntary
interviews of individuals who may have information relating to terrorist activity.
On November 9, the Attorney General directed all United States Attorneys and
members of the joint federal and state Anti-Terrorism Task Forces, or "ATTFs",
to meet with certain noncitizens in their jurisdictions, and the Deputy Attorney
General issued a memorandum outlining the procedures and questions to be asked
during those interviews.
The names of approximately 5000 individuals that were sent to the ATTFs as
part of this effort are those who we believe may have information that is
helpful to the investigation or to disrupting ongoing terrorist activity.
The names were compiled using common-sense criteria that take into account
the manner, according to our intelligence sources, in which Al Qaida has traditionally
operated. Thus, for example, the list includes individuals who entered the
United States with a passport from a foreign country in which Al Qaida has
operated or recruited; who entered the United States after January 1, 2000;
and who are males between the ages of 18 and 33.
The President and Attorney General continually have emphasized that our war
on terrorism will be fought not just by our soldiers abroad, but also by civilians
here at home. Last week, the Attorney General announced a new plan to enable
our nations guests to play a part in this campaign. Noncitizens are
being asked, on a purely voluntary basis, to come forward with useful and
reliable information about persons who have committed, or who are about to
commit, terrorist attacks. Those who do so will qualify for the Responsible
Cooperators Program. They may receive S visas (or deferred action status)
that will allow them to remain in the United States for a period of time.
Aliens who are granted S visas may later apply to become permanent residents
and, ultimately, American citizens. The Responsible Cooperators Program enables
us to extend Americas promise of freedom to those who help us protect
Third, the Bureau of Prisons on October 31 promulgated a regulation permitting
the monitoring of attorney-client communications in very limited circumstances.
Since 1996, BOP regulations have subjected a very small group of the most
dangerous federal detainees to "special administrative measures,"
if the Attorney General determines that unrestricted communication with these
detainees could result in death or serious bodily harm to others. Those measures
include placing a detainee in administrative detention, limiting or monitoring
his correspondence and telephone calls, restricting his opportunity to receive
visitors, and limiting his access to members of the news media. The pre-existing
regulations cut off all channels of communication through which detainees
could plan or foment acts of terrorism, except one: communications through
their attorneys. The new regulation closes this loophole.
This regulation permits the monitoring of attorney-client communications for
these detainees only if the Attorney General, after having invoked the existing
special administrative measures authority, makes the additional finding that
reasonable suspicion exists that a particular detainee may use communications
with attorneys to further or facilitate acts of terrorism. Only 12 of the
approximately 158,000 inmates in federal custody would be eligible for monitoring.
In taking this action, the Department has included important procedural safeguards
to protect the attorney-client privilege. First and foremost, the attorney
and client will be notified in writing that their communication will be monitored
pursuant to the regulation. Second, the regulation erects a "firewall"
between the team monitoring the communications and the outside world, including
persons involved with any ongoing prosecution of the client. Third, absent
imminent violence or terrorism, the government will have to obtain court approval
before any information from monitored communications is used for any purpose,
including for investigative purposes. And fourth, no privileged information
will be retained by the monitoring team; only information that is not privileged
may be retained.
The Justice Department has two objectives in the war on terrorism: to protect
innocent American lives, and to safeguard the liberties for which America
stands. We have enhanced our national security by immobilizing suspected terrorists
before they are able to strike. And we have respected civil liberties by detaining,
on an individualized basis, only those persons for whom we have legal authority
to do so. Those whom we suspect of terrorist activities and who are in violation
of the law will be prosecuted to the fullest extent with every resource at
the Justice Departments disposal.
Since the atrocities of September 11, the Department of Justice has worked
hand-in-hand with members of this Committee in our common effort to protect
innocent Americans from additional terrorist attacks. I thank you for this
unprecedented cooperation, and we look forward to continuing our partnership.
I would be happy to answer any questions that you may have.
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