[Congressional Record Volume 147, Number 167 (Wednesday, December 5, 2001)]
[Senate]
[Page S12397]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRESIDENT BUSH'S SECURITY MEASURES
Mr. KYL. Mr. President, I ask unanimous consent to have printed in
the Record at this point a column in the December 5 edition of the
Arizona Republic, the primary newspaper in my hometown, Phoenix,
written by Robert Robb.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Critics of Bush Security Measures Forget We're at War
A democracy at war remains a democracy.
That means that the government's policies, including the
conduct of the war, remain appropriate subjects for
discussion and debate.
To underscore that point, and highlight the contrast with
the fascist enemy, Winston Churchill continued the practice
of the prime minister standing for questions before
Parliament during World War II.
As Churchill put it in his war memoirs: ``(A)t no time was
the right of criticism impaired. Nearly always the critics
respected the national interest.''
Churchill's description connotes a higher standard of
conduct than ordinarily pertains in a democracy for those who
criticize war policies, to be careful about facts and fair
about issues, to check the customary political hyperbole,
grandstanding and posturing.
The critics of the Bush administration's war policies are
beginning to fail this higher standard.
This is, in part, because President Bush failed to ask for
a formal declaration of war against al-Qaida, the Taliban and
other specified terrorist organizations.
The bombs falling in Afghanistan should have settled the
question. But without a formal declaration, there are still
those who want to treat this as a law-enforcement action,
rather than as a war.
But a war it is, and it has a domestic as well as foreign
front.
Enemies of the United States entered the country, stole
airplanes and killed thousands of Americans. The government
believes that there are other enemies still in the United
States who plan to commit similar acts of violence.
One of the war fronts is finding and incapacitating those
enemies living within.
Critics now casually and routinely depict the efforts of
the Bush administration to do so as an assault on civil
liberties.
There were reasons to object to certain provisions of the
anti-terrorism legislation, and, indeed, I so objected.
But the actual powers granted the government by the
legislation are routinely mischaracterized in the public
debate. More importantly, the general charge that the Bush
administration is trampling on civil liberties is
irresponsible hyperbole not justified by the record to date.
The administration has detained a handful of people as
material witnesses, as permitted by the grand jury laws. It
is detaining a larger number on suspected immigration law
violations.
Clearly, the administration is selectively enforcing long-
neglected immigration laws. But enforcing a law isn't
trampling on civil rights just because enforcement previously
has been lax.
The Bush administration has been roundly criticized for
wanting to ask questions of young men from Middle Eastern
countries. Given that all of the hijackers were of a similar
background, as are overwhelmingly the members of al-Qaida,
that's a perfectly sensible desire.
These interviews are voluntary at a time of war. The
adverse reaction to them is more revealing of the character
of the critics than of the administration.
Then there are the potential military tribunals for foreign
combatants. Under President Bush's executive order, he must
personally designate someone for such a trial. A military
tribunal would consider evidence with probative value,
although classified information could be reviewed in camera,
or in a judge's private office. Defendants would have
procedural rights and an attorney.
We are at war. Having such a mechanism in place may be
important to protect the security of the United States.
Having the option poses no threat to civil liberties. Whether
such tribunals adequately protect defendant rights and fairly
administer justice can only be ascertained in practice.
Senate Judiciary Chairman Patrick Leahy, D-Vt., is going to
bring Attorney General John Ashcroft before his committee to
answer inflated civil rights concerns. This is supposedly
part of Congress' vaunted oversight function, which receives
no mention in the Constitution.
Meanwhile, Leahy is neglecting the clear constitutional
duty to act on judicial nominations.
Leahy would better serve the nation by bringing some judges
before his committee for confirmation, rather than trying to
unfairly put Ashcroft in the dock.
Mr. KYL. Mr. President, I wanted to insert this column in the Record
not only because the author is one of the best writers from my hometown
newspaper, and frequently has very wise things to say, but also because
his column is right on point for something that has been troubling me.
The title is ``Critics of Bush Security Measures Forget We Are at
War.''
The point he is trying to make is that in this question of deciding
how we are going to make Americans more secure from terrorist attack,
some people are getting carried away in the expression of concerns
about the civil rights or due process rights of people who might be the
subject of military commissions or other investigations by our law
enforcement or military people in connection with this war on
terrorism.
I think he makes a good point. His essential point is that it is not
a zero sum game, that we can both provide for the security of our
citizens on the one hand and, on the other hand, ensure that American
citizens will always have their due process rights, and even for those
who are not American citizens, who become the equivalent of prisoners
of war, and that the United States, through procedures developed for
the military commissions, will treat them fairly. I think that is a
very legitimate point to make.
The Attorney General is going to be before the Judiciary Committee,
and he will be asked to respond to a lot of questions about how he is
handling his investigations and how the military commissions will work.
I note that the President's order to the Defense Department to develop
the procedures for military commissions has not yet resulted in the
rules and regulations, and rules of evidence and procedures, and so on,
at least as far as I know. So it is premature to criticize those rules.
In the Judiciary Committee yesterday we heard from two eminent law
professors, who I am sure would be happy to be called liberal in their
political ideology: Laurence Tribe, with whom I have worked and for
whom I have a lot of respect; and Cass Sunstein; as well as two
Republican witnesses, both with significant experience in this area.
All four agreed this was the kind of circumstance that justified the
creation of military commissions and, indeed, that such commissions
were constitutional. The two more liberal professors said they would
make some changes around the margins. But nobody questioned the
authority of the United States of America to set up these tribunals in
order to take care of those people who might be captured, particularly
in the Afghanistan situation, or said it would not be appropriate to
try to bring them to justice under our article III court system in the
United States.
I point that out to ask my colleagues to look at this column. I think
it is very well written. It makes the point of what we need to be
considering when we characterize the issue as a zero sum game, which it
is not. We don't need to deprive anybody of appropriate civil liberties
at the same time we are ensuring the security of the United States and
its citizens from terrorist attacks.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. REID. Will the Senator withhold for a unanimous consent request?
Mr. WELLSTONE. Yes.
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