[Congressional Record Volume 147, Number 158 (Thursday, November 15, 2001)]
[Senate]
[Pages S11888-S11890]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   TRYING TERRORISTS AS WAR CRIMINALS

  Mr. SPECTER. Mr. President, I have sought recognition to comment on a 
couple of subjects today. First is a subject that is very much in the 
forefront of the news, which is the proposal to try terrorists in 
military tribunals as opposed to trials in U.S. courts of law.
  The Attorney General of the United States is quoted in this morning's 
press as citing circumstances that the administration believes would 
require this change in procedure, and it is a matter that I believe 
ought to be considered by the Congress, because under the Constitution 
the Congress has the authority to establish military courts and 
tribunals dealing with international law.
  I have written today to the chairman of the Judiciary Committee 
suggesting that prompt hearings be held on this subject. We are going 
to be returning after the Thanksgiving recess, and we will have a 
chance to look into this matter. Events are unfolding very rapidly now 
in the war in Afghanistan, with major advances being made by the 
Northern Alliance, with U.S. commandos on the ground, moving in an 
effort to find Osama bin Laden. I have predicted consistently since 
September 11 that we would find him and, as President Bush has said, we 
would either bring bin Laden to justice, or we would bring justice to 
him. So the issue of military courts is something that may be upon us 
sooner rather than later.
  The Constitution provides that the Congress is empowered to define 
and punish violations of international law, as well as to establish 
courts with exclusive jurisdiction over military offenses. Under 
articles of war, enacted by Congress, and statutes, the President does 
have the authority to convene military commissions to try offenses 
against the law of war. Military commissions could be convened to try 
offenses, whether committed by U.S. service members, civilian U.S. 
citizens, or enemy aliens, and a state of war need not exist. So there 
has been a delegation of authority by the Congress. But under the 
Constitution it is the Congress that has the authority to establish the 
parameters and the proceedings under such courts.

  In World War II, in the case of Ex parte Quirin, 317 U.S. 1, eight 
German saboteurs were tried by a military commission for entering the 
United States by submarine, shedding their military uniforms and 
conspiring to use explosives on unknown targets. After their capture, 
President Roosevelt proclaimed that all saboteurs caught in the United 
States would be tried by military commission. The Supreme Court of the 
United States denied their writs of habeas corpus, holding that trial 
by such a commission did not offend the Constitution.
  In World War II, we obviously faced a dire threat. The decision was 
made, understandably at that time, to have that kind of a trial 
procedure and not in regular civil Federal courts. Our current 
circumstances may warrant such action at the present time, but I do 
believe it is something that ought to be considered by the Judiciary 
Committee.
  I note the presence of the distinguished chairman of the committee in 
the Chamber. I just commented, Senator Leahy, that I have signed a 
letter to you on this subject. I thought it worthwhile to go far beyond 
the letter and to talk about this subject because I believe it is a 
matter of very substantial importance.
  Mr. LEAHY. If the Senator will yield for a moment, I haven't seen the 
letter, but the press described it to me and asked me about it. I told 
them I totally agree with you on that, that we should have hearings on 
this--actually a number of these steps. One of the difficult things, as 
the Senator knows, is getting the Attorney General to come up here and 
testify. I think the last person to be able to even ask him a question 
in our committee was the senior Senator from Pennsylvania during the 
terrorism bill.
  I only heard part of what the Senator was saying, but his usual 
fashion is to lay out the law and the history very clearly. I do 
believe we should have hearings. I intend to have a meeting with the 
FBI Director this afternoon. I am also going to talk to the Attorney 
General on this and a number of other issues, including some about 
which the Senator has expressed concern to me. He really should come up 
here before we finish for the year. We should discuss some of these 
issues.
  I think the Senator from Pennsylvania is absolutely right in raising 
this. I appreciate him doing it. He does us all a service.
  Mr. SPECTER. I thank my colleague from Vermont for those comments. I 
think the Attorney General would come up on an invitation. We are due 
back here on the 26th. I think it would be in order to make this the 
first order of business of the committee on the 27th. That would be 12 
days' notice.
  I note that there is a very extensive Executive Order implementing 
this procedure. This matter is not something which burst upon the scene 
yesterday. It has been under consideration.
  I noted that a key Member of the House of Representatives was quoted 
in this morning's press as not having been consulted. I noted the 
chairman is also

[[Page S11889]]

quoted in the press as having not been consulted. That is the 
President's right. He can take his action, but under the separation of 
powers we have our own rights. The Congress has the authority to make 
those determinations. That is what the Constitution says. We have the 
authority to decide how those trials will be conducted. Of course, we 
are in a very difficult situation. We face a struggle for survival with 
what happened on September 11. The executive branch is entitled to 
great deference, but we are entitled to know the reasons for the 
President's order and its scope. Such a military tribunal need not have 
a trial by jury, which would be expected. Not to have a trial by jury 
is a military court-martial. There is no explicit privilege against 
self-incrimination. That is something we have to consider.

  There is even no right of the defendant to choose his counsel. I 
don't think that would be the case in every tribunal, but these are 
powers that are very broad, and just as we found it necessary to take 
some time on the terrorist bill, our job is to take a look at it. And 
the executive will be immeasurably strengthened if the Congress backs 
the President.
  Mr. LEAHY. If the Senator will yield further on that point, first 
off, I could not agree more with him. I think his last point is one 
that bears emphasis--how they might be strengthened. The Senator from 
Pennsylvania and I have served here longer than most Members of this 
body. I think it is safe to say that we have seen more bipartisan--
virtually nonpartisan--support for the President in the last 2 months 
than we have for any President, Republican or Democrat, during the 
times he and I have been privileged to serve together in this body. 
That can be very helpful for the President.
  However, it raises one certain danger. That support in our common 
goal to fight terrorism and to protect our fellow citizens in this 
country is good, but if it goes beyond that, and nobody has a question, 
ultimately the Presidency is hurt, the Senate is hurt, and the country 
is hurt. I think we have to ask these questions. You have a question of 
basic rights such as counsel, jury trial, and whatnot. Obviously, there 
are exceptions. We understand that. But if the exception becomes the 
rule, then all of us suffer. We have seen this in efforts to go after 
organized crime and in other efforts. It is easy to push the envelope 
because we only need it this time.

  We have to ask what are the standards, what is the trigger for using 
this. I have read the Executive order. It is obvious it was thought 
about a lot. George Terwilliger, a former prosecutor from Vermont and 
former Deputy Attorney General, is quoted today as saying a lot of 
these items have been around the Justice Department in both Republican 
and Democratic administrations--my words, not his--for a long time and 
are being dusted off. Some were not dusted off in the past because 
cooler heads prevailed.
  I think the American public will, as the Congress has, support the 
President in a fight against terrorism, but the American public 
deserves having questions aired and answers given. The Senator from 
Pennsylvania does a service in raising that. I can assure him there 
will be a time set. The Attorney General will be requested to come 
before us prior to the Senate adjourning. There has not been 
consultation with either the Republican or Democratic leadership in the 
Congress on each of these issues. I do not know how many other shoes 
will drop between now and the time of the hearing, but whatever is 
there, we will ask about them.
  I do not want to interrupt the Senator from Pennsylvania any further, 
but I came to the Chamber simply to thank him for raising what is a 
very valid point.
  Mr. SPECTER. Mr. President, I thank the Senator from Vermont for 
those comments. These are issues of very considerable moment. These are 
matters which need to be analyzed very carefully.
  The war against terrorism is a very vital war. Some suggestions have 
been made there might be a concern about convicting bin Laden, but I 
remind them, he has been under indictment since 1998 for killing 
Americans in Mogadishu in 1993 and the blowing up of our embassies in 
Africa in 1998, and there evidence against him linking him to the 
attack on the U.S.S. Cole. So there is considerable evidence. However 
that may turn out, this is a matter which should receive deliberation 
by the Judiciary Committee because there are very weighty issues to be 
considered.
  There is not a great deal of time. We are scheduled to have a recess 
to get a secret briefing later today on what is happening in 
Afghanistan. So I ask unanimous consent to print in the Congressional 
Record a CRS Report for Congress, dated October 29, 2001, on ``Trying 
Terrorists as War Criminals,'' which outlines some of the key 
considerations.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Trying Terrorists as War Criminals

    (By Jennifer Elsea, Legislative Attorney, American Law Division)

       Summary: In the aftermath of the September 11 terrorist 
     attacks on the World Trade Center and the Pentagon, the 
     question of whether to treat the attacks as acts of war or 
     criminal acts has not been fully settled. The purpose of this 
     report is to clarify the rationale for treating the acts as 
     war crimes and the ramifications of applying the law of war 
     rather than criminal statutes to prosecute the perpetrators. 
     The discussion focuses on the trial of alleged terrorists and 
     conspirators by a military commission rather than the federal 
     courts.
       In the aftermath of the September 11 terrorist attacks on 
     the World Trade Center and the Pentagon, the question of 
     whether to treat the attacks as acts of war or criminal acts 
     has not been fully settled. The distinction may have more 
     than rhetorical value. The purpose of this report is to 
     clarity the law enforcement implications of treating the 
     terrorist acts as war crimes and to identify the possible 
     ramifications of applying the law of war rather than criminal 
     statutes to prosecute the alleged perpetrators.
       Law Enforcement versus Law of War. Some observers have 
     expressed concern that treating terrorist acts as acts of war 
     may legitimize the acts as a lawful use of force and elevate 
     the status of the Taliban and the terrorist networks to that 
     of legitimate state actors and lawful combatants. However, it 
     may be argued that an application of the law of war to 
     terrorism does not imply lawfulness of the conflict, nor does 
     it imply that perpetrators are not criminals. Terrorists do 
     not, by definition, conduct themselves as lawful combatants. 
     Under this view, they may be treated as war criminals and if 
     captured, are not entitled to prisoner-of-war status under 
     the Geneva Conventions. As suspected war criminals, they may 
     be tried by any nation in its national courts or by a 
     military commission convened by one nation or many.
       The Justice Department is reportedly exploring whether to 
     adopt the law of war approach to prosecute those responsible 
     for the September 11 attacks. It appears that there are few 
     legal impediments to adopting such an approach. Other 
     practical considerations that may arise include the following 
     questions: Must war crimes be investigated by military 
     police, possibly implicating the Posse Comitatus Act? If 
     federal or state police are used, must they follow the same 
     standards that they apply to criminal cases? How will it 
     affect the United States' ability to extradite terrorists 
     captured abroad?
       Such an approach could also have an impact on civil 
     matters. Will there be any effect on the possible civil 
     liability of terrorists to compensate victims? Would it 
     matter if a particular victim was a government employee or 
     someone located at a ``military target'' at the time of an 
     attack? Will there be an effect on the liability of insurers? 
     A decision to adopt a law of war approach to the terrorist 
     acts currently at issue, or to all future terrorist acts, 
     could also have significant foreign policy repercussions.
       What is the Law of War? As a subset of the law of nations, 
     the law of war is a composite of many sources and is subject 
     to varying interpretations constantly adjusting to address 
     new technology and the changing nature of war. It may also be 
     referred to as jus in bello, or law in war, which refers to 
     the conduct of combatants in armed conflict, as distinguished 
     from jus ad bellum--law before war--which outlines acceptable 
     reasons for nations to engage in armed conflict. The main 
     thrust of its principles requires that a military objective 
     be pursued in such a way as to avoid needless and 
     disproportionate suffering and damages. Sources of the law of 
     war include international agreements, customary principles 
     and rules of international law, judicial decisions by both 
     national and international tribunals, national manuals of 
     military law, treatises, and resolutions of various 
     international bodies.
       At the risk of oversimplifying the concept, three 
     principles derived from the law of war may be applied to 
     assess the legality of any use of force for political 
     objectives.
       Military necessity. If the use of force is justified, that 
     use must be proportional in relation to the anticipated 
     military advantage or as a measure of self-defense. The 
     principle applies to the choice of targets, weapons and 
     methods. This principle, however, does not apply to unlawful 
     acts of war. There can be no excuse of necessity if the 
     resort to the use of arms is not itself justified.
       Humanity. Lawful combatants are bound to use force 
     discriminately. In other words,

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     they must limit targets to valid military objectives and must 
     use means no harsher than necessary to achieve that 
     objective. They may not use methods designed to inflict 
     needless suffering, and they may not target civilians.
       Chivalry. Combatants must adhere to the law of armed 
     conflict in order to be treated as lawful combatants. They 
     must respect the rights of prisoners of war and captured 
     civilians, and avoid behavior such as looting and pillaging. 
     They may not disguise themselves as non-combatants.
       Although these principles leave a great deal of room for 
     interpretation, there can be little doubt, assuming such acts 
     can be viewed as acts of war, that the attacks of September 
     11 were not conducted in accordance with the law of war. Even 
     if one considers the Pentagon to be a valid military target, 
     the hijacking of a commercial airliner is not a lawful means 
     for attacking it. Acts of bioterrorism, too, violate the law 
     of war, regardless of the nature of the target.
       Constitutional Bases for Establishing military Commission. 
     The Constitution empowers the Congress to define and punish 
     violations of international law as well as to establish 
     courts with exclusive jurisdiction over military offenses. 
     United States law recognizes the legality of creating 
     military commissions to deal with ``offenders or offenses 
     designated by statute or the law of war.'' Under the former 
     Articles of War and subsequent statute, the President has 
     authority to convene military commissions to try offenses 
     against the law of war. Military commissions could be 
     convened to try such offenses whether committed by U.S. 
     servicemembers, civilian citizens, or enemy aliens. A 
     declared state of war need not exist.
       Precedent. Although the current crisis does not fit the 
     typical mold associated with war crimes committed by 
     otherwise lawful combatants in obvious theaters of war, there 
     is precedent for convening military commissions to try 
     accused saboteurs for conspiring to commit violations of the 
     law of war outside of the recognized war zone. In the World 
     War II case of Ex Parte Quirin, eight German saboteurs (one 
     of whom was purportedly a U.S. citizen) were tried by 
     military commission for entering the United States by 
     submarine, shedding their military uniforms, and conspiring 
     to use explosives on unknown targets. After their capture, 
     President Roosevelt proclaimed that all saboteurs caught in 
     the United States would be tried by military commission. The 
     Supreme Court denied their writs of habeas corpus, holding 
     that trial by such a commission did not offend the 
     Constitution.
       Power of the Military Commission. As a legislative court, a 
     military commission is not subject to the same constitutional 
     requirements that apply to Article III courts. Defendants 
     before a military commission, like defendants before a court-
     martial, have no right to demand a jury trial before a court 
     established in accordance with rules governing the judiciary. 
     There is no right of indictment or presentment under the 
     Fifth Amendment, and there may be no protection against self-
     incrimination or right to counsel. While Congress has enacted 
     procedures applicable to courts-martial that ensure basic due 
     process rights, no such statutory procedures exist to codify 
     due process rights to defendants before military commissions.
       Congress has delegated to the President the authority to 
     convene military commissions, set rules of procedure, and 
     review their decisions. This authority may be delegated to a 
     field commander or any other commander with the power to 
     convene a general court-martial. Statutes authorize 
     prosecuting persons for failure to appear as witness, 
     punishing contempt, and accepting into evidence certain 
     depositions and records of courts of inquiry.
       Procedural Rules. Procedural rules and evidentiary rules 
     are prescribed by the President and may differ among 
     commissions. Courts-martial are conducted using the Military 
     Rules of Evidence set out in the Manual for Courts-
     Martial; however, these rules need not apply to trials by 
     military commission. Subject to the statutory provisions 
     above, the President may establish any rules of procedure 
     and evidence he deems appropriate.
       Although there may be little judicial review available to 
     persons convicted by U.S. military commissions, it is surely 
     necessary to provide for trials that will be fundamentally 
     fair under both U.S. and international standards regarding 
     the application of the law of war. Telford Taylor noted in 
     evaluating World War II war crimes trials: ``It is of the 
     first importance that the task of planning and developing 
     permanent judicial machinery for the interpretation and 
     application of international penal law be tackled immediately 
     and effectively. The war crimes trials, at least in Western 
     Europe, have been held on the basis that the law applied and 
     enforced in these trials is international law of general 
     application which everyone in the world is generally bound to 
     observe. On no other basis can the trials be regarded as 
     judicial proceedings, as distinguished from political 
     inquisitions.''
       There is some historical precedent from which an 
     international norm regarding procedural rights for accused 
     war criminals might be derived. The Nuremberg Tribunals 
     provide a good starting point, as further refined by the 
     International Criminal Tribunals for Yugoslavia and Rwanda. 
     Perhaps the most recent embodiment of the requirements of the 
     international law of war is to be found in the procedures of 
     the not-yet-operational International Criminal Court 
     established by the Rome Statute.
       The evidentiary rules used at Nuremberg and adopted by the 
     Tokyo tribunals were designed to be non-technical, allowing 
     the expeditious admission of ``all evidence [the Tribunal] 
     deems to have probative value.'' This evidence included 
     hearsay, coerced confessions, and the findings of prior 
     mass trials. While the historical consensus seems to have 
     accepted that the war crimes commissions were conducted 
     fairly, some observers argue that the malleability of the 
     rules of procedure and evidence could and did have some 
     unjust results. For some, the perception is that 
     ``victors' justice'' was all that was sought.
       Assuming that ordinary procedural and evidentiary rules are 
     unsuitable for the task, it will likely be necessary to adapt 
     or develop a more fitting set. The necessity to protect civil 
     liberties will be seen to require balancing with the need to 
     protect vital national security information and the public 
     safety.
       Possible Challenges. Although federal courts do not have 
     jurisdiction to review the decisions of legislative courts, a 
     defendant sentenced by a military commission may file a writ 
     of habeas corpus claiming a violation of the law of war, the 
     Constitution, relevant statutes, or military regulations. A 
     challenge based on an interpretation of the law of war is not 
     likely to succeed. Because of Congress' power to define and 
     punish violations of international law, and due to national 
     security implication, courts are likely to defer to the 
     political branches. Due process claims are also unlikely to 
     succeed. Case law demonstrates the difficulties such a 
     challenge would face. A U.S. citizen charged with aiding and 
     abetting the foreign terrorists might be able to argue that 
     the charges against him amount to treason, for which the 
     Constitution contains explicit limitations. Aiding and 
     abetting a hostile (but lawful) force, however, may be 
     distinguishable from conspiring to commit a war crime.
       The broad delegation of authority to convene military 
     commissions makes a statutory claim unlikely to succeed. A 
     defendant could argue that Congress, by passing comprehensive 
     anti-terrorism legislation that does not authorize trial by 
     military commission, implicitly withholds such authority. A 
     similar argument failed in Ex Parte Quirin. However, the 
     Supreme Court noted that the Espionage Act of 1917 and the 
     Articles of War explicitly kept open concurrent jurisdiction 
     with military tribunals.
       A last option would be to argue that the military 
     commission violated its own rules. For such a challenge to 
     succeed, the court would have to find that the military 
     reviewing authority committed an error which probably 
     affected the verdict. If the appeal were successful, the 
     court would likely remand the case to the military 
     authorities for retrial.

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