[Congressional Record Volume 151, Number 28 (Thursday, March 10, 2005)]
[Senate]
[Pages S2474-S2477]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            MORNING BUSINESS

  Mr. McCONNELL. Mr. President, I ask unanimous consent that there now 
be a period for morning business with Senators permitted to speak for 
up to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, I rise for two purposes. The first is to 
draw attention to a recent program at the Supreme Court on the work of 
Justice Robert Jackson and Thomas Dodd, the father of Senator 
Christopher J. Dodd, dealing with the International Military Tribunals 
at Nuremberg. I was happy to read the remarks of my colleague, Senator 
Dodd, at the event, and I was interested to find that many of the 
conclusions he draws from his father's experiences remain essential to 
our conduct of international justice today--and, unfortunately, they 
are all too often forgotten.
  I would first echo the remarks made by Senator Dodd and salute the 
extraordinary work performed by Justice Robert Jackson and Thomas Dodd 
in their roles as the U.S. Chief Prosecutor and Deputy Prosecutor, 
respectively, at Nuremberg over 50 years ago.
  The Nuremberg Tribunal taught us many lessons: that even in the 
depths of war, justice is not blind; that those who practice terror, 
oppression, hatred, and mass murder will be punished. Perhaps equally 
important, however, was the notion that they should also be afforded a 
trial. Indeed, the United States committed itself to overcoming the 
passions of the moment and reaffirming the rule of law. I believe this 
action set an important precedent that is still applicable today.
  Critically, the Tribunal also helped record the horrific crimes of 
the Nazi regime so the whole world would see the brutality and 
understand the depravity of those unimaginable acts.
  Unfortunately, crimes against humanity have occurred since the 
Nuremberg Tribunals, and they continue to occur today in places such as 
Darfur in Sudan. I believe that it is again necessary to remind 
ourselves of the important lessons learned over 50 years ago when 
Justice Robert Jackson and then Thomas Dodd--soon to be Senator Thomas 
Dodd--brought before the world the evidence of Nazi atrocities and 
said, ``This cannot stand.''
  I ask unanimous consent that the remarks of Senator Dodd at the 
Supreme Court on February 15, 2005, entitled, ``Justice Served, Lessons 
Learned: Robert Jackson, Thomas Dodd and the Nuremberg Trials,'' be 
printed in the Record following my comments here today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BIDEN. Mr. President, I encourage my colleagues to take the time 
to read this speech and consider this important message and its 
application today.

                               Exhibit 1

 Justice Served, Lessons Learned: Robert Jackson, Thomas Dodd, and the 
                            Nuremberg Trials

       It's a privilege to be with you in the Supreme Court 
     Chamber, where cases that have changed the course of our 
     nation's history have been argued and decided.

[[Page S2475]]

       As a United States Senator, it's not often that I make my 
     way across the street to this building and to this branch of 
     government.
       Two years ago, I was here to observe oral argument in 
     Nevada Department of Human Resources v. Hibbs. That case 
     considered the constitutionality of the Family and Medical 
     Leave Act. I was interested because I authored the Family and 
     Medical Leave Act in the Senate.
       The bill had survived two Presidential vetoes and had taken 
     seven years to become law. But in this institution, these 
     facts were of little consequence. Nothing is quite as 
     humbling as Justices deciding whether or not to strike down a 
     law you labored over for years. I was relieved when the 
     Court, by a margin of 6 to 3, upheld the Act.
       But that visit, and others I've made over the years, 
     prompted me to think about the differences between the Senate 
     and the Supreme Court.
       Senators show up to work in suits; Justices wear robes.
       Senators are under the constant scrutiny of television 
     cameras; Justices have somehow managed to keep them out of 
     this Chamber.
       And, of course, Senators have to run for re-election every 
     six years; Justices of the Supreme Court have the best job 
     security in the world.
       So it's understandable why no fewer than 13 United States 
     Senators later served on the Supreme Court. That number 
     includes three Chief Justices--Salmon Portland Chase, Edward 
     Douglass White, and Oliver Ellsworth of Connecticut.
       I tried to comfort myself by finding what I assumed would 
     be an equally long list of Justices who resigned their seats 
     on the Court for the honor and privilege of serving in the 
     U.S. Senate. But that list was exactly one name long.
       That lone individual, I discovered, was David Davis, U.S. 
     Supreme Court Justice, and later Senator from Illinois. He 
     was appointed to the Court by Abraham Lincoln in 1862, and 
     served here for 15 years before resigning in 1877 when he was 
     elected a Senator by the Illinois state legislature.
       It should be noted, though, that the U.S. Senate wasn't his 
     first choice. He was a candidate for the presidential 
     nomination five years earlier in 1872. He sought the 
     nomination of what was then known as the ``Liberal 
     Republican'' party. Some might suggest it was that 
     characteristic that would make him most unique today.
       I'd like to recognize, of course, Justice Souter, who has 
     joined us this evening. And though he isn't here today, I'd 
     also like to recognize Chief Justice Rehnquist.
       Justice Rehnquist is a wonderful student of history who has 
     done so much to educate our nation and the world about this 
     unique institution. And as I'm sure many of you know, from 
     1952 to 1953 he served as a law clerk for Justice Robert 
     Jackson.
       Last month I had the honor of participating in the 
     inauguration of President Bush. I don't think anyone watching 
     the ceremony on that day could fail to be moved by the 
     courage and fortitude displayed by Chief Justice Rehnquist. I 
     think I speak for everyone here, and countless others, as 
     well, in wishing him well this evening.
       I'd like to thank Barrett Prettyman of the Supreme Court 
     Historical Society for his kind introduction, and I'd like to 
     thank Professor John Barrett for his historical notes as 
     well.
       I'd also like to thank Greg Peterson of the Robert H. 
     Jackson Center for his remarks, and for the invitation to 
     speak to you this evening. And I'd like to welcome members of 
     the Jackson family who have joined us this evening.
       If Nuremberg was the most profound experience that 
     influenced my father's life, there were few individuals whose 
     words and ideas carried greater weight with my father than 
     those of Robert H. Jackson.
       Justice Jackson was truly an extraordinary man whose life's 
     journey took him from a farmhouse in upstate New York, to the 
     U.S. Department of Justice, where he served as Solicitor 
     General and Attorney General, to the Supreme Court, to a 
     courtroom in Nuremberg, Germany. Following Nuremberg, he 
     returned to this very chamber where, less than five months 
     before he passed away, he and his eight colleagues voted to 
     end racial segregation in schools across our land.
       Robert Jackson graduated from neither college nor law 
     school.
       And prior to his appointment to the Supreme Court, he had 
     never served as a judge. Yet he became one of the most 
     respected jurists of his time, one known for his 
     thoughtfulness, his fairness, his courage, and his 
     eloquently-written opinions. He was an ardent defender of the 
     freedoms articulated in our nation's Bill of Rights.
       Of particular relevance today, Justice Jackson defended 
     these freedoms even during times of war, and even when he was 
     at odds with many of his fellow justices. He was one of only 
     three justices to dissent in Korematsu v. United States, 
     which allowed the detention of Japanese-Americans in 
     internment camps during World War II--a decision we now 
     regard as a stain on our nation's historical commitment to 
     freedom and justice.
       Most of all, Justice Jackson was committed to promoting and 
     enforcing the rule of law, not only here in the United States 
     but around the globe, as well.
       Having witnessed the horrors of Nazi Germany, he had a deep 
     and abiding belief that the law is humanity's strongest and 
     noblest weapon against tyranny and oppression.
       We gather here this evening two days after the 113th 
     anniversary of Justice Jackson's birth, and just a few months 
     after the 50th anniversary of his passing on October 9, 1954.
       It's fitting, as well, that we assemble here two weeks 
     after the 60th anniversary of the liberation of Auschwitz.
       More than any other events, the liberation of Auschwitz and 
     the Nuremberg trials were the two events that laid bare 
     before the entire world the horrors committed by the Nazi 
     regime.
       At liberation, the Western world saw, for the very first 
     time, the gas chambers, the cattle cars, and the crematoria. 
     They saw gruesome piles of corpses, and the emaciated few who 
     had survived the largest and deadliest of Hitler's death 
     camps. At Nuremberg, the war and the Final Solution were 
     painstakingly and meticulously documented and recorded so the 
     existence of these horrific events would never, ever be in 
     doubt.
       With each passing day, there remain fewer and fewer of 
     those who can personally bear witness to the atrocities of 
     the Nazi regime. As a result, our generation's responsibility 
     becomes even greater--to ensure that the lessons we learned 
     six decades ago do not fade away into the mist of history.
       This responsibility was one that my father took very, very 
     seriously--and it was reflected in how he raised his six 
     children. From a very early age, he would tell us about Adolf 
     Hitler and Heinrich Himmler, and describe places like 
     Auschwitz, Buchenwald, and Dachau.
       My father believed firmly that the value of the Nuremberg 
     experience would not only be in the individual sentences 
     meted out to the named defendants--but, in a larger sense, in 
     the legacy the trial would leave to future generations.
       In hindsight, some might think it was inevitable that 
     nations like ours would judge criminals like the Nazis 
     according to the rule of law. In reality, there was great 
     debate, both here in the United States and among our allies, 
     over how to handle the Nazi leaders.
       We know today that as many as four Supreme Court Justices, 
     and many others including the powerful Senator from Ohio, 
     Robert Taft, felt that the trials at Nuremberg would be a 
     case of ex post facto judgment, and would therefore be 
     illegal under our own Constitution. The Chief Justice at the 
     time, Harlan Stone, called Nuremberg a ``high-grade lynching 
     party.''
       A great many in our nation and around the world advocated a 
     different treatment for captured Nazi officials--one that had 
     long been practiced by nations victorious in war: summary 
     execution. Winston Churchill was said to have supported such 
     a policy.
       Why, so the argument went, should we show any mercy to 
     these criminals--men who were responsible for the ruthless 
     slaughter of six million Jews, and five million other 
     innocent men, women, and children?
       Men who razed to the ground entire villages and towns and 
     massacred those who lived in them.
       Men who launched an aggressive war that eventually claimed 
     over 54 million lives, and turned the European continent into 
     a mass graveyard.
       The argument was a compelling one. But a different one 
     would win the day. That case was the one advocated by men 
     like Justice Robert Jackson and a young lawyer named Thomas 
     Dodd. These two and others believed that the best way to 
     judge these crimes against humanity, and to deter future 
     crimes, would be a fair, legal trial.
       They insisted on the rule of law, rather than the rule of 
     the mob.
       And so in the summer of 1945, Justice Jackson assembled not 
     a team of executioners, but a team of legal professionals who 
     would meticulously use the Nazis' own documents, records, and 
     testimony to prove their guilt. My father was one of the men 
     he chose to be on that team.
       During his fifteen months at Nuremberg, my father wrote 
     daily letters to my mother. These beautifully written letters 
     always began with the words ``Grace, my dearest one.'' They 
     fill up this volume I hold in my hand--and a second volume of 
     equal length.
       I had no idea that these letters even existed until the 
     early 1990's. Before reading these letters I, arranged them 
     in chronological order. I finally completed this long process 
     in the summer of 1995.
       Without any prior awareness, you can imagine my shock when 
     on the evening of July 28, 1995, I sat down to begin reading 
     the letters and realized that the first letter to my mother 
     was written on July 28, 1945--50 years earlier, to the day.
       My father arrived in Europe on that day with mixed 
     feelings. He knew that he had an opportunity to be part of a 
     historic occasion. But he was reluctant to leave my mother 
     and their children. I was only a year old at the time--and a 
     very active child according to my mother. Sometimes I wonder 
     if I was the reason my father decided to go to Nuremberg.
       Ultimately, the decision was made to see the job through. 
     As he explained it, ``Sometimes a man knows his duty, his 
     responsibility so clearly, so surely, he cannot hesitate--he 
     dare not refuse it. Even great pain and other sacrifices seem 
     unimportant in such a situation. The pain is no less for this 
     knowledge--but the pain has a purpose at least.''
       He threw himself into a job he expected would last only a 
     few months. In July 1945,

[[Page S2476]]

     this 38-year-old attorney had no idea that he would be 
     promoted from staff counsel to trial counsel, then to senior 
     trial counsel, and then to Executive Trial Counsel--the 
     deputy prosecutor for the United States.
       The Nuremberg trials themselves were an absolutely massive 
     undertaking, with so many questions that had to be answered:
       Who would be the judges?
       Who would be the lawyers?
       Would the defendants be tried together or separately?
       Would the trials be conducted under American or European 
     legal customs?
       Would they be military or civilian trials?
       And perhaps the most pressing practical question: Where 
     would the trials be held?
       My father, like many, expressed reservations about holding 
     the trial in Nuremberg. The city, he said, was ``probably the 
     worst in Germany'' in terms of destruction. He suggested that 
     Heidelberg, which had survived the war essentially intact, 
     would have been a better alternative.
       But for reasons of principle--if not practicality--he knew 
     that Nuremberg was the right choice. It was, after all, 
     Nuremberg where the Nazis met on September 10, 1935 to codify 
     into law their regime of oppression, terror, and hatred. And 
     so it was totally fitting that in Nuremberg, these Nazis were 
     brought to justice.
       My father's ambivalent outlook towards his participation in 
     the trial changed dramatically on August 14th, 1945. On that 
     day, he and his fellow prosecutors began interrogating 
     prisoners. He described it as ``a day I shall never forget,'' 
     and the day that followed as ``the most fascinating day of my 
     life.''
       From August through November 1945, my father spent much of 
     his time face to face with some of the most vital cogs in 
     Hitler's murderous Nazi machine. William Keitel. Hans Frank. 
     Rudolph Hess. Hermann Goering. One by one, each of them would 
     do his best to deflect blame and to deny. My father remarked 
     that ``It would be relieving to hear one of them admit some 
     blame for something. They blame everything on the dead or 
     missing.''
       Throughout the course of the investigation and trial, my 
     father became one of Justice Jackson's closest associates--
     and one of his closest friends, as well.
       There's no question that my father viewed Justice Jackson 
     as much more than a professional colleague. ``I am proud of 
     my association with him,'' he wrote, ``and even more proud of 
     his friendship.''
       My father admired Jackson greatly for his keen intellect, 
     his quiet dignity, and for his steadfast dedication to seeing 
     the trial through to the end. In a letter he wrote to Justice 
     Jackson's son on the occasion of the Justice's passing in 
     1954, my father called him ``one of a very few great men whom 
     I have been privileged to meet in my lifetime.''
       I will not go into much detail discussing the proceedings 
     of the trial itself. Much of the trial was actually fairly 
     tedious. For the most part, anyone expecting tearful 
     admissions of guilt was sorely disappointed.
       My father, for his part, presented several aspects of the 
     prosecution's case, including those on concentration camps, 
     on economic oppression, and on slave labor. He cross-examined 
     numerous witnesses, including six of the defendants. Four of 
     those defendants were ultimately sentenced to death. The 
     other two served lengthy terms in prison.
       For my father, though, Nuremberg was about much more than 
     the defendants, the evidence, and the sentences. It was about 
     the opportunity, as he put it, ``to write a record that will 
     mark a new point in man's relation with man.''
       My father returned from Nuremberg with a deep commitment to 
     the rule of law and its role in upholding the basic human 
     rights and human dignity of every man, woman, and child.
       That commitment is the reason why--as a Congressman and a 
     Senator--he was such a staunch supporter of the civil rights 
     movement. It's the reason he was such an ardent opponent of 
     Communism. And it is the reason why he embraced bold new 
     efforts to eliminate poverty in our nation and throughout the 
     world.
       My father also left Nuremberg as an ardent believer in the 
     need to create and use law to preserve and promote human 
     dignity.
       Nuremberg was essentially a trial without precedent. As I 
     mentioned earlier, when Justice Jackson and others were 
     developing the guidelines for the Nuremberg trials, there was 
     a great deal of debate and disagreement over the legality of 
     the proceedings.
       Justice Jackson spent a great deal of time arguing why, in 
     fact, there was legal precedent in international law for the 
     crime of waging aggressive war.
       But beyond those legal arguments, there was another, far 
     more fundamental point--a point that Robert Jackson and my 
     father shared. That the crimes committed by the Nazis were so 
     heinous, so unthinkable, that they violated the basic rules 
     by which all of humanity must abide.
       As Justice Jackson said in his opening statement, ``The 
     wrongs which we seek to condemn and punish have been so 
     calculated, so malignant and so devastating, that 
     civilization cannot tolerate their being ignored because it 
     cannot survive their being repeated.''
       This idea of a natural law, rooted in basic standards and 
     norms of human behavior, was a powerful argument in favor of 
     the Nuremberg trials. Perhaps no document embodies the idea 
     that such basic standards exist more than our own Declaration 
     of Independence, which affirms that ``all men are created 
     equal, that they are endowed by their Creator with certain 
     inalienable rights, that among these rights are life, 
     liberty, and the pursuit of happiness.''
       Natural law was a concept for which my father was a 
     strenuous advocate. I can remember a story he told me about a 
     paper he wrote at Yale for a professor of his, Harold Lasky, 
     a renowned socialist. In the paper, my father argued 
     passionately in favor of natural law theory. When he got the 
     paper back, a note was written on the front page: ``I 
     disagree with everything you have written. A Plus.''
       The Nuremberg trials' lasting legacy, my father believed, 
     would be in international institutions that could punish 
     crimes against humanity, and more importantly, deter those 
     crimes in the future.
       As he put it, ``By a declaration of criminality against 
     these organizations, this tribunal will put on notice not 
     only the people of Germany, but the people of the whole 
     world. Mankind will know that no crime will go unpunished 
     because it was committed in the name of a political party or 
     a state; that no crime will be passed by because it is too 
     big; that no criminals will avoid punishment because there 
     are too many.''
       Regrettably, my father's and Robert Jackson's vision has 
     not yet been fully realized.
       Over the last six decades, we have not witnessed the level 
     of horrific destruction and carnage perpetrated by the Nazis. 
     But we have seen, time and again, terrible crimes against 
     humanity in places like Cambodia, Iraq, Bosnia, Rwanda, and 
     today in the Darfur province of the Sudan.
       Tragically, many of the individuals involved in these 
     crimes--people like Joseph Stalin, Pol Pot, and Idi Amin--
     were never brought to justice. In some of these cases, the 
     world did eventually create tribunals--but always, like 
     Nuremberg, temporary, ad hoc courts that were established 
     after the fact.
       To truly be called effective, a court must not simply 
     punish the guilty, then disband. It must serve as a permanent 
     reminder to any potential criminals that they, too, will be 
     held accountable. Such a court can not only punish crimes--it 
     can deter them.
       In my view, there is only one kind of institution that can 
     ensure the kind of accountability that can prevent future war 
     crimes--and that is a permanent court empowered to indict, 
     prosecute, and judge international criminals.
       After many, many years of effort, the International 
     Criminal Court came into existence on July 1, 2002. 
     Unfortunately, rather than lend its support to this effort, 
     the United States has walked away from it.
       I'm aware that there are complex issues that need to be 
     resolved regarding our nation and the International Criminal 
     Court. But I strongly believe that our nation's interests, 
     and the world's interests, would be far better served if we 
     worked to address those issues rather than abandoning the 
     entire process.
       What, after all, does it say about a nation that prides 
     itself in upholding freedom, justice, and human rights when 
     it simply disengages itself from an institution whose goal is 
     to promote those values? And what does it say about an 
     institution's power to bring criminals to justice when the 
     most powerful nation in the world refuses to play a part?
       The tragic events in Darfur today represent exactly the 
     kind of situation in which people like my father and Robert 
     Jackson envisioned international courts playing a prominent 
     role. It is my hope that the current administration will see 
     the Darfur genocide as an opportunity to participate in this 
     institution in some way, rather than simply standing on the 
     sidelines. Otherwise, the cry of ``never again'' will ring 
     tragically hollow.
       There is another legacy of Nuremberg that is just as 
     powerful as its role in the development of international law. 
     As I mentioned earlier, the decision to hold a trial at 
     Nuremberg--rather than summary executions--was not an easy 
     choice.
       We rejected the certainty of executions for the uncertainty 
     of a trial. We turned away from violence that was certainly 
     within our ability, and, many would argue, within our right.
       But what we learned is that our nation became stronger, and 
     more respected, because we took the course that we did.
       At the heart of that decision was the idea that this nation 
     will not tailor its eternal principles to the conflict of the 
     moment--and the recognition that if we did, we would be 
     walking in the very footsteps of the enemies we despised.
       This is a principle I believe we would all do well to 
     remember today.
       This past year, we all were horrified at the images and 
     stories of abuse of prisoners held in places like Abu Ghraib 
     in Iraq and Guantanamo Bay, Cuba.
       The abuse itself was shocking. In my view, though, even 
     more troubling are the comments on this issue that we've 
     heard from some who occupy positions of great power in our 
     government.
       Legal justifications for the use of torture by American 
     troops;
       For turning over individuals to other nations known to 
     torture detainees;
       And, perhaps most egregiously, legal justifications that 
     would explicitly exempt any executive branch official from 
     prosecution for torture ``if they are carrying out the 
     President's Commander-in-Chief powers.''
       Sixty years ago at Nuremberg, the United States and our 
     allies considered the defense

[[Page S2477]]

     ``I was just following orders'' to be so cowardly that it was 
     prohibited under the rules of the trial.
       Perversely, there are some who consider that defense 
     acceptable for Americans today.
       The proponents of these rationalizations tell us that we 
     are living in different times.
       That we are facing enemies who show blatant disregard for 
     human life, and whose organizations transcend international 
     borders.
       As a result, the argument goes, we must re-evaluate certain 
     conventions and practices that we have long respected.
       I wonder how men like Robert Jackson and my father would 
     respond to these arguments. Would they be swayed by them? 
     Would they be persuaded somehow that the followers of Osama 
     bin Laden and Saddam Hussein are fundamentally different from 
     the despicable and depraved defendants who swore allegiance 
     to Adolf Hitler?
       Would these men, who prosecuted the Nazis based on 
     testimony and documentary evidence, be heartened by the 
     argument that the best responses we can muster against evil 
     today are attack dogs and water-boarding?
       I truly, truly think not. On the contrary, I believe that 
     Robert Jackson and my father would be tremendously 
     disappointed and saddened at some of the actions taken by 
     Americans on behalf of our nation--and by some of the 
     official legal arguments made in support of those actions.
       I believe that Robert Jackson and Thomas Dodd would see 
     these actions as a reflection of a government that has turned 
     away from the lessons of history and stepped back from the 
     very values of due process and equal justice that we expect 
     of others worldwide.
       Is the threat of international terrorism a dangerous one? 
     Unquestionably. But we cannot allow that danger to compromise 
     bedrock principles which have stood since the birth of our 
     nation--values like the right to be free from torture or from 
     indefinite detention without a charge.
       We enshrined these values in our Constitution not simply 
     because we believe Americans are entitled to them. We did so 
     because they affirm a basic sense of human dignity in each 
     and every man and woman. And because we, as a nation, are 
     committed to upholding that dignity--even if others do not.
       If we cavalierly toss aside those values in response to a 
     particular enemy or threat, it is not our enemies, but we who 
     will pay the ultimate price.
       As Justice Jackson said at Nuremberg, ``we must never 
     forget that the record on which we judge these defendants 
     today is the record on which history will judge us tomorrow. 
     To pass these defendants a poisoned chalice is to put it to 
     our own lips as well. ``
       A century and a half ago, in his second State of the Union 
     address, Abraham Lincoln said that in giving or denying 
     freedom to slaves, ``We shall nobly save or meanly lose the 
     last, best hope of earth.''
       The issue then was how our nation treats the enslaved. 
     Sixty years ago, the question was how to treat Nazi war 
     criminals. Today, we face the same choice with regard to the 
     way we treat international terrorists.
       If we heed the example set at Nuremberg by people like 
     Robert Jackson and Thomas Dodd, if we treat our enemies 
     according to our standards--not theirs--we feed the flame of 
     liberty and justice that has rightly led our nation on its 
     journey for these past two and a quarter centuries.
       And we set a shining and lasting example for a true global 
     community--one grounded in the principles of justice, 
     freedom, and peace.
       And we live up to the great memory of Robert Jackson and of 
     a young counsel named Thomas Dodd.

                          ____________________