WASHINGTON - September 28 -
September 28, 2006
Mr. President, I oppose the Military Commissions Act.
Let me be clear: I welcome efforts to bring terrorists to justice.
It is about time. This Administration has too long been distracted by
the war in Iraq from the fight against al Qaeda. We need a renewed focus
on the terrorist networks that present the greatest threat to this country.
But Mr. President, we wouldn’t be where we are today, five years
after September 11 with not a single Guantanamo Bay detainee having
been brought to trial, if the President had come to Congress in the
first place, rather than unilaterally creating military commissions
that didn’t comply with the law. The President wanted to act on
his own, and he dared the Supreme Court to stop him. And he lost. The
Hamdan decision was an historic rebuke to an Administration that has
acted for years as if it were above the law.
Finally, only because he was essentially ordered to do so by the Supreme
Court, the President has agreed to consult with Congress. I would have
hoped that we would take this opportunity to pass legislation that allows
us to proceed in accordance with our laws and our values. That is what
separates America from our enemies. These trials, conducted appropriately,
have the potential to demonstrate to the world that our democratic,
constitutional system of government is our greatest strength in fighting
those who attacked us.
And that is why I am saddened that I must oppose this legislation.
Because, Mr. President, the trials conducted under this legislation
will send a very different signal to the world, one that I fear will
put our own troops and personnel in jeopardy both now and in future
conflicts. To take just a few examples, this legislation would permit
an individual to be convicted on the basis of coerced testimony and
hearsay, would not allow full judicial review of the conviction, and
yet would allow someone convicted under these rules to be put to death.
That is simply unacceptable. We would not stand for another country
to try our citizens under those rules, and we should not stand for our
own government to do so, either.
Not only that, this legislation would deny detainees at Guantanamo
Bay and elsewhere—people who have been held for years but have
not been tried or even charged with any crime—the ability to challenge
their detention in court. Among its many flaws, this is the most troubling—that
the legislation seeks to suspend the Great Writ of habeas corpus.
The legislation before us is better than that originally proposed by
the President, which would have largely codified the procedures the
Supreme Court has already rejected. And that is thanks to the efforts
of some of my Republican colleagues for whom I have great respect and
But this bill remains deeply flawed, and I cannot support it.
One of the most disturbing provisions of this bill eliminates the right
of habeas corpus for those detained as enemy combatants. I support an
amendment by Senator Specter to strike that provision from the bill.
I ask unanimous consent that my separate statement on that amendment
be put in the record at the appropriate point.
Habeas corpus is a fundamental recognition that in America, the government
does not have the power to detain people indefinitely and arbitrarily.
And that in America, the courts must have the power to review the legality
of executive detention decisions.
Habeas corpus is a longstanding vital part of our American tradition,
and is enshrined in the U.S. Constitution.
As a group of retired judges wrote to Congress, habeas corpus “safeguards
the most hallowed judicial role in our constitutional democracy –
ensuring that no man is imprisoned unlawfully.”
Mr. President, this bill would fundamentally alter that historical
equation. Faced with an executive branch that has detained hundreds
of people without trial for years now, it would eliminate the right
of habeas corpus.
Under this legislation, some individuals, at the designation of the
executive branch alone, could be picked up, even in the United States,
and held indefinitely without trial and without any access whatsoever
to the courts. They would not be able to call upon the laws of our great
nation to challenge their detention because they would have been put
outside the reach of the law.
Mr. President, that is unacceptable, and it almost surely violates
our Constitution. But that determination will take years of protracted
Mr. President, why would we turn our back on hundreds of years of history
and our nation’s commitment to liberty -- particularly when there
is no good reason to do so? We should be working to provide a lawful
system of military commissions so that those who have committed war
crimes can be brought to justice. We can do that quite well without
denying one of the most basic rights guaranteed by the Constitution
to those held in custody by our government.
Some have suggested that terrorists who take up arms against this country
should not be allowed to challenge their detention in court. But that
argument is circular – the writ of habeas allows those who might
be mistakenly detained to challenge their detention in court, before
a neutral decision-maker. The alternative is to allow people to be detained
indefinitely with no ability to argue that they are not, in fact, enemy
combatants. Unless any of my colleagues can say with absolute certainty
that everyone detained as an enemy combatant was correctly detained
– and there is ample evidence to suggest that is not the case
– then we should make sure that people can’t simply be locked
up forever, without court review, based on someone slapping a “terrorist”
label on them.
There is another reason why we must not deprive detainees of habeas
corpus, and that is the fact that the American system of government
is supposed to set an example for the world, as a beacon of democracy.
And this provision will only serve to harm others’ perception
of our system of government.
Mr. President, a group of retired diplomats sent a very moving letter
explaining their concerns about this habeas-stripping provision. Here
is what they said: “To proclaim democratic government to the rest
of the world as the supreme form of government at the very moment we
eliminate the most important avenue of relief from arbitrary governmental
detention will not serve our interests in the larger world.”
Many, many dedicated patriotic Americans share these grave reservations
about this particular provision of the bill.
They have reservations not because they sympathize with suspected terrorists.
Not because they are soft on national security. Not because they don’t
understand the threat we face. No. They, and we in the Senate who support
the Specter amendment, are concerned about this provision because we
care about the Constitution, because we care about the image that American
presents to the world as we fight the terrorists. Because we know that
the writ of habeas corpus provides one of the most significant protections
of human freedom against arbitrary government action ever created. If
we sacrifice it here, we will head down a road that history will judge
harshly and our descendants will regret.
Mr. President, we must not imperil our proud history. We must not abandon
the Great Writ. We must not jeopardize our nation’s proud traditions
and principles by suspending the writ of habeas corpus, and permitting
our government to pick people up off the street, even in U.S. cities,
and detain them indefinitely without court review. That is not what
America is about.
Unfortunately, the suspension of the Great Writ is not the only problem
with this legislation, nor is it the only instance where the legislation
goes beyond establishing military commissions to include unnecessary
provisions with deeply troubling results.
The Administration has spoken about the need for this legislation to
bring clarity to the War Crimes Act, which makes it a crime to violate
Common Article 3 of the Geneva Conventions. It has proposed that we
specifically list the actions that would be considered crimes under
that law. On the face of it, that certainly sounds sensible. But when
you look at this legislation, you realize that the modification it makes
only muddies the waters. Not only that, it does so retroactively.
The key problem is in the definition of “cruel or inhuman”
treatment. This is a critical definition because it is the provision
that determines which coercive interrogation techniques amount to crimes
under U.S. law. But because of the complex structure of this section,
it is very difficult to understand what the new definition would criminalize,
and I am concerned that any ambiguity may be interpreted too narrowly
by some. The definition incorporates several terms that in turn have
their own separate definitions, and it even has one new definition that
doesn’t go into effect until the date of enactment, even though
the rest of the amendments to the War Crimes Act are made retroactive
to 1997. Frankly, Mr. President, the new prohibition is extremely unclear.
And we have already heard different interpretations of it from Senators
and Administration officials who negotiated the language. If our goal
is to give unambiguous guidance to our personnel, and the courts, this
does not do it.
The way the provision is drafted, it even seems designed to grant immunity
to senior officials who authorized coercive interrogation techniques.
Mr. President, we should just follow the approach originally endorsed
by the Senate Armed Services Committee, which would have applied the
language of the McCain amendment.
Mr. President, I am also very concerned about the definition of unlawful
enemy combatant that is included in this legislation, and about the
corresponding issue of the jurisdiction of the military commissions.
Mr. President, this legislation has been justified as necessary to
allow our government to prosecute Khalid Sheikh Mohammed and other dangerous
men recently transferred to Guantanamo Bay. Yet if you look at the fine
print of this legislation, it becomes clear that it is much, much broader
than that. It would permit trial by military commission not just for
those accused of serious terrorist crimes, but also individuals, including
legal permanent residents of this country, who are alleged to have “purposefully
and materially supported hostilities” against the United States
or its allies.
This is extremely broad, and key terms go undefined. And by including
hostilities not only against the United States but also against its
allies, the bill allows the U.S. to hold and try by military commission
individuals who have never engaged, directly or indirectly, in any action
against the United States.
Not only that, but the bill would also define as an unlawful enemy
combatant subject to trial by military commission, anyone who “has
been determined to be an unlawful enemy combatant by a Combatant Status
Review Tribunal or another competent tribunal established under the
authority of the President or the Secretary of Defense.” This
essentially grants a blank check to the executive branch to decide entirely
on its own who can be tried by military commission.
If we are going to establish military commissions outside of our traditional
military and civilian justice systems, at a minimum we should explicitly
limit their application to the worst of the worst, those who pose a
serious threat to our country. We shouldn’t leave it up to just
one branch of government to make these incredibly important decisions.
Mr. President, the bulk of this legislation concerns the structure
and process of military commissions. Although we heard from many witnesses
at congressional hearings this summer that we should hew as closely
as possible to the long-established military system of justice, this
bill instead essentially starts from scratch and creates a whole new
structure. It does so despite Justice Kennedy’s wise advice in
his concurrence in Hamdan, where he said: “The Constitution is
best preserved by reliance on standards tested over time and insulated
from the pressures of the moment.”
For example, this legislation creates a presumption for the admissibility
of hearsay evidence. Now, it is true that because of the exigencies
of war and active combat situations, hearsay rules may need to be structured
differently than they are in our criminal courts, but the rules laid
out in the UCMJ are drafted to handle these same exigencies. While there
may need to be some adjustments to the UCMJ hearsay rules, we need not
discard them altogether.
The presumption against hearsay is a fundamental protection built into
our existing legal structures to ensure that proceedings yield a just
and fair result. Yet in this provision and elsewhere, the legislation
erodes such protections—going far beyond what is allowed in the
military system—and without justification.
Even more disturbing is that the bill appears to permit individuals
to be convicted, and even sentenced to death, on the basis of coerced
testimony. According to the legislation, statements obtained through
cruel, inhuman, or degrading treatment, as long as it was obtained prior
to December 2005 when the McCain amendment become law, would apparently
be admissible in many instances in these military commissions.
Now, it is true that the bill would require the commission to find
these statements have sufficient reliability and probative value. But
why would we go down this road of trying to convict people based on
statements obtained through cruel, inhuman, or degrading interrogation
techniques? Either we are a nation that stands against this type of
cruelty and for the rule of law, or we are not. We can’t have
it both ways.
The idea that coerced statements can be used as long as they were obtained
long enough ago is appalling. It seems to assume that there was a lack
of clarity in the law prior to December 2005. In fact, there was great
clarity, until this Administration decided to invent a narrow definition
of torture that had never been used or accepted anywhere in the civilized
world. The McCain amendment was needed to get this Administration to
return to the law. It was a repudiation of the legal theories of the
infamous Bybee memo, which the Administration even said it was withdrawing
once it was publicly revealed. Its enactment should not now be used
as a dividing point before which evidence obtained through cruel and
inhuman treatment can be used in court.
At times of great adversity, the strength of a nation’s convictions
is tested and its true character revealed. If we sacrifice or qualify
our principles in the face of the tremendous challenge we face from
terrorists who want to destroy America, we will be making a terrible
mistake. If we cloak cruel or degrading interrogations done in the name
of American safety with euphemisms like “alternative techniques,”
if we create arbitrary dates for when differing degrees of morality
will apply, we will have betrayed our principles and ourselves.
Statements obtained through such techniques should not be admissible,
even against the most vicious killers in the world, in proceedings held
by the government of the United States of America. Period.
Mr. President, in sum, this legislation is very troubling and in many
respects legally suspect. I fear the end result of this legislation
will only be more delay. It will surely be subject to further legal
challenge, and may squander another four or five years while cases work
their way through the courts again.
We can and must fight terrorism aggressively without compromising fundamental
American values. We must remember what the Army Judge Advocate General
told me at a Judiciary Committee hearing this summer: that the United
States should set an example for the world, and that we must carefully
consider the effect on the way our own soldiers will be treated.
Mr. President, in closing let me do something I don’t do very
often – and that is quote John Ashcroft. According to the New
York Times, at a private meeting of high-level officials in 2003 about
the military commission structure, then-Attorney General Ashcroft said:
“Timothy McVeigh was one of the worst killers in U.S. history.
But at least we had fair procedures for him.” How sad that this
Congress would seek to pass legislation about which the same cannot