[Congressional Record Volume 147, Number 174 (Friday, December 14, 2001)]
[Senate]
[Pages S13275-S13276]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           MILITARY TRIBUNALS

  Mr. LEAHY. Mr. President, over the past few weeks, the Committee on 
the Judiciary has examined the administration's proposal to use 
military tribunals to try suspected terrorists. I think our work has 
been very helpful and productive. We used the constitutional oversight 
powers of the Senate to hold a series of hearings on a number of recent 
developments. Assistant Attorneys General asked to testify and we 
accommodated them. The Attorney General responded to a bipartisan 
request and we accommodated him with respect to the date and timing of 
his participation. We had a dialog on the question of military 
tribunals. We heard from other witnesses at our earlier hearings and 
through the course of the last few weeks informally from literally 
thousands of people.
  We did this because it appeared to many of us that we had sort of a 
unilateral edict on the part of the administration regarding military 
tribunals. We were hearing, from the left to the right, concern that it 
was so unilateral that it might not stand constitutional muster. So in 
seeking as many voices on this as possible, we heard from some who 
endorsed wholeheartedly the use of military tribunals, others who said 
we should only use our court system--the tried and tested method of the 
court system, and still others who said--and I find myself in this 
category--sometimes military tribunals can be appropriate provided they 
are duly authorized and provided there are reasonable limits and proper 
safeguards for them.
  I will put in the Record a copy of a letter from a large number of 
lawyers and law professors on this issue, and also a summary of some of 
the things we found in our committee hearings. I also include a 
proposal. I put this in the Record because I know Senators have been 
considering proposals for a military tribunal. Several Members of both 
parties have come forward with very constructive suggestions. I want to 
make sure if we are going to use military tribunals, we bring the 
procedure into compliance with international law, but with treaty 
obligations we have elsewhere. I want to make sure we set out very 
clearly the question of what our limits are, what the U.S. says about 
military tribunals.
  We all know our various Presidents over the years have had to call 
other countries and say: You are holding an American. You can't put 
that American before a secret military tribunal. There have to be 
safeguards and we have to know what is going on. Certainly, you must 
carry out your own laws, but let's do it in the open and make sure they 
have a chance to speak, that they know what the evidence is against 
them, and that they have a chance for appeal.
  A military tribunal is not a court-martial. Our courts-martial in the 
United States follow very specific procedures--in fact, some of the 
best in the world. If it is simply a question of these being, in 
effect, a court-martial, I don't think there would be any problem.
  But what is a military tribunal? Senators have asked: Does it mean 
that a bare majority, or even less, could vote for the death penalty? 
What is the standard of proof? Is it mere suspicion, or is it 
preponderance of the evidence,

[[Page S13276]]

or is it beyond a reasonable doubt? Does the person accused have any 
chance to give any kind of a defense? These are all issues that should 
be laid out.
  If we are going to use military tribunals, let's make sure we are 
putting forth the best face of America. We have so much for which to be 
proud. We have a great deal to be proud of in our civil courts and in 
our military courts. At a time when we are asking nations around the 
world to join us in our battle against these despicable acts of 
terror--the acts we saw on September 11 in New York, the Pentagon, and 
in a lonely field in Pennsylvania--as we properly and appropriately 
defend ourselves and seek to eradicate the source of this terror, let's 
make sure, as we line up countries around the world to join us in that 
battle, that we keep those countries as our allies for further battles. 
Even after bin Laden is gone--and eventually he will be--there will be 
other terrorists--if not now, in later years. We want to make sure that 
countries join with us in the battle against terrorism, respecting the 
fact that we uphold our Constitution and our highest ideals as 
Americans.

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