[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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