[Congressional Record Volume 148, Number 108 (Thursday, August 1, 2002)]
[Senate]
[Pages S7859-S7860]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AMERICAN SERVICEMEMBERS' PROTECTION ACT
Mr. LEAHY. Mr. President, I read with interest the statement that
Representative Hyde made on July 23, 2002 about the American
Servicemembers' Protection Act (ASPA) during House consideration of the
conference report on H.R. 4775, the fiscal year 2002 Supplemental
Appropriations bill for Further Recovery From and Response to Terrorist
Attacks on the United States.
Although neither Mr. Hyde nor his staff were present during the
negotiations on ASPA, he suggests that the House readily accepted
section 2015, also known as the ``Dodd-Warner amendment'', which was
unanimously included in the Senate-passed version of ASPA. I do not
think it is necessary to engage in an exhaustive discussion of the
legislative history of the Dodd-Warner amendment because it is clear on
its face. And, the first rule of legislative interpretation is that one
looks to the history only if a provision is ambiguous.
To the extent that the legislative history is relevant, I believe
that I can comment on this issue, as I was involved with the drafting
of the amendment and was an original co-sponsor. Moreover, I was
involved in negotiations over section 2015 during the conference on the
Supplemental, and my staff was actively engaged in discussion on this
issue throughout.
Contrary to Mr. Hyde's suggestion that the House receded on section
2015 because it is ineffectual, the House understood that the effect of
the Dodd-Warner amendment is to qualify provisions of ASPA, including
sections 2004, 2006, and 2011, in cases involving foreign nationals. It
was for that reason that the House conferees repeatedly and vigorously
sought to remove all or part of it from the conference report.
Those present at the negotiations know that the House agreed to
accept the Dodd-Warner amendment only when the Senate agreed to drop
its provision related to the United Nations Population Fund (UNFPA),
which House supporters of ASPA strongly opposed.
Mr. Hyde also asserts that section 2015 ``simply reiterates that this
legislation does not apply to international efforts besides the
International Criminal Court to bring to justice foreign national
accused of genocide, war crimes, or crimes against humanity.'' As a
former prosecutor and Chairman of the Senate Judiciary Committee, I
appreciate the creativity of Mr. Hyde's argument. But he is trying to
put a square peg into a round hole, and one would have to rewrite the
provision to support his interpretation. The flaws in this
interpretation are self-evident, if one simply reads the text of
section 2015:
Nothing in this title shall prohibit the United States from
rendering assistance to international efforts to bring to
justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden,
other members of Al Qaeda, leaders of Islamic Jihad, and
other foreign nationals accused of genocide, war crimes or
crimes against humanity.
The language of this section is clear, and it is noteworthy that any
iteration of the phrase ``besides the International Criminal Court''
does not appear anywhere in the text.
In fact, when Senator Dodd and I were drafting this amendment, I
specifically added the phrase ``and other foreign nationals accused of
genocide, war crimes or crimes against humanity'' to ensure that this
section would apply to the International Criminal Court (ICC). The ICC
currently has jurisdiction over these three crimes.
As I mentioned earlier, the importance of this phrase was not lost on
the House, and opponents of the Dodd-Warner amendment tried repeatedly
to nullify or remove it. It was even reported to me that, at the
eleventh hour, House staff members sought, unsuccessfully, to insert
the word ``other'' before the phrase ``international efforts to bring
to justice . . .'', in an attempt to prevent the Dodd-Warner amendment
from applying to the ICC and heavily qualifying portions of ASPA.
Another important phrase in section 2015 is: ``Nothing in this title
shall prohibit . . .'', which makes unequivocally clear that no
provision in ASPA prevents the U.S. from cooperating with the ICC in
cases involving foreign nations.
No one disputes the fact that Congress has serious concerns about
Americans coming before the ICC, which is the reason that ASPA was
passed. During consideration of ASPA, Senator Warner made that point
clear:
This amendment would protect U.S. military personnel and
other elected and appointed officials of the U.S. government
against potential criminal prosecution by an international
tribunal court to which the United States is not a party.
However, through the Dodd-Warner amendment, Congress sets a different
standard with respect to non-Americans. Congress wanted to be clear
that the U.S. can cooperate with international efforts, including those
by the ICC, to bring foreign nationals to justice for genocide, war
crimes, and crimes against humanity, as Senator Dodd pointed out during
the Senate debate:
My amendment merely says that despite whatever else we have
said, when it comes to prosecuting these people, we would
participate and help, even though we are not a signatory or
participant in the International Criminal Court.
This is precisely why the Senate unanimously accepted the Dodd
amendment and why the lead sponsor of ASPA, Senator Warner, joined as
co-sponsor of the amendment.
I see that Chairman Byrd is here on the floor and I would ask if he
agrees with my recollection of events that transpired during the
conference negotiations on the Supplemental and my interpretation of
the Dodd-Warner amendment.
Mr. BYRD. I agree with what Senator Leahy has said about section 2015
of the Supplemental Appropriations bill. The House strongly resisted
efforts to incorporate the Dodd-Warner amendment in the bill, and
receded only in exchange for the Senate agreeing to drop a provision on
UNFPA.
Mr. LEAHY. I thank the Chairman. I want to take this opportunity to
say a few words about the importance of section 2015. A primary reason
for the creation of the ICC is to remove the uncertainty and protracted
negotiations surrounding the establishment of ad hoc tribunals to try
those accused of genocide, war crimes, and crimes against humanity. In
the future, the ICC may be the only venue for bringing to justice those
accused of these heinous crimes.
The Dodd-Warner amendment simply ensures that the United States can
assist the ICC, or other international efforts, to try foreign
nationals accused of war crimes, genocide, and crimes against humanity.
It is not difficult to think of a number of instances when it would be
in the interest of the United States to support such efforts. For
example:
What if 50 Americans, traveling overseas, are brutally killed by a
suicide bomber and the ICC attempts to bring to justice the
perpetrators of this horrendous act?
What if a group of terrorists commits war crimes against U.S.
military personnel who are posted abroad and the ICC is involved with
efforts to bring them to justice?
What if the ICC prosecutes some future Saddam Hussein, Slobodan
Milosovic, or Osama bin Laden who is responsible for the deaths of
thousands of people?
Would we want the President of the United States to be hamstrung by
ASPA in these, or a number of other cases, and prevented from actively
supporting efforts by the ICC to bring
[[Page S7860]]
these types of notorious criminals to justice? Of course not.
Finally, I want to point out that Mr. Hyde also goes to great lengths
to provide an interpretation of sections 2004, 2006, and 2011. Although
I was not involved with the negotiations on ASPA with the
Administration, I must say that the State Department's efforts with the
House on this issue were miserable, and I know this is not typical of
the way the Department represents U.S. interests abroad.
The explanation that the State Department offers for supporting ASPA
is that it did so in exchange for releasing the U.N. dues. This does
not withstand the most basic scrutiny.
In the wake of the September 11 attacks, there was overwhelming
support in Congress to assist with efforts to prevent and respond to
international terrorism. After September 11, without any quid-pro-quo,
the Senate voted to confirm Ambassador John Negroponte to the position
of U.S. representative to the United Nations. I am confident that the
State Department, with a little ingenuity, could have persuaded the
Republican majority in the House to meet our obligations to the United
Nations--something that is clearly in our national security interests--
without having to agree to support ASPA.
In any event, I take issue with Mr. Hyde's interpretation of sections
2004, 2006, and 2011, even though they are heavily qualified by the
Dodd-Warner amendment. Again, one should look to legislative history
only if the text of the provision is unclear, and in this case the text
of ASPA is clear and does not support his reading. For example, there
is nothing in the waiver language concerning the President's executive
authority or authority as Commander-in-Chief that limits the waiver to
a subset of this authority. Moreover, ASPA clearly states that the
waiver applies to ``any action or actions . . .'' not to ``some''
actions.
For Mr. Hyde's interpretation to be correct it would be necessary to
add language to the provision such as: ``if it would be
unconstitutional for Congress to restrict the exercise of this
authority.'' Moreover, ASPA states that it applies to ``any action''
taken by the President as Commander-in-Chief or exercising ``the
executive power'' of the Presidency. If the President has the
constitutional authority to take an action, this provision permits him
to do so, notwithstanding any other language in the bill. It is not
relevant whether Congress could have prohibited such actions.
Further, no matter what was said between those who negotiated ASPA,
Mr. Hyde's interpretation of the provision was not necessarily in the
minds of the majority of Members voting on ASPA because it simply was
not mentioned during the House or Senate debates. These waiver
provisions complement section 2015 which is highly relevant in
interpreting them, as Senator Warner alluded to during the Senate
debate. Congress decided that it did not want to tie the President's
hands if he determined that it makes sense for the United States to
cooperate with any international body, including the ICC, in
prosecuting foreign nationals accused of genocide, war crimes, and
crimes against humanity.
I want to thank Senators Dodd and Warner for their efforts to ensure
that ASPA does not include overly-burdensome restrictions on the
President that prevent the U.S. from cooperating with the ICC. I also
want to thank Senator Dodd's staff for providing valuable advice on
this issue.
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