[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
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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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