[Congressional Record Volume 152, Number 114 (Thursday, September 14, 2006)]
[Senate]
[Pages S9626-S9627]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NSA-RELATED BILLS AND PROPOSED CHANGES TO WAR CRIMES ACT

  Mr. LEAHY. Mr. President, earlier today the President visited Capitol 
Hill for a closed-door meeting with House Republicans. It is not often 
the President takes time out of his busy schedule to come to Congress. 
But to meet only with Republicans is wrong and divisive.
  After his closed door meeting, the President talked about working 
together, in a bipartisan way. His walk does not match his talk. I wish 
he would act as a uniter and work with all of us on behalf of all 
Americans. Regrettably, it appears that, once again, this President has 
chosen to act in a partisan way in his role as Republican-in-Chief. 
That is wrong.
  I hope that all Senators will recognize their responsibility to all 
Americans and exercise their best independent judgment, rather than 
taking orders from the head of their political party.
  In the Judiciary Committee yesterday, Senators did exercise that kind 
of independent judgment when we joined together in a bipartisan way to 
report a bipartisan bill that would amend the Foreign Intelligence 
Surveillance Act and reign in the Administration's warrantless domestic 
wiretapping program. That bill, S. 3001, the bill cosponsored by 
Senator Specter and Senator Feinstein, was the only proposal that drew 
bipartisan support. I urge the Majority Leader to recognize the merits 
of that bill and our bipartisan efforts by moving to proceed to that 
bill when the Senate turns its attention to these matters.
  This bipartisan bill was authored by Senator Feinstein, one of the 
few Senators being briefed on the Presidents program of domestic 
surveillance without warrants. It is intended to ensure our 
intelligence community can protect our nation with the necessary court 
oversight. It will bring the President's program within the law.
  It stands in stark contrast to the White House-endorsed bill that 
grants sweeping authority to the Executive Branch for a program about 
which we know very little. The Bush-Cheney Administration has refused 
Congress's requests for information. Since when did Congress become an 
arm of the Executive Branch? Since when was the Senate reduced to a 
rubberstamp? Oversight means accountability. Oversight makes Government 
work better. It prevents abuses and corruption. We need Government to 
be as competent and accountable as it can be in fighting terrorism.
  I have been attempting to clarify the facts and the law relating to 
the Administration's warrantless wiretapping program since it was first 
disclosed in December 2005. During the ensuing eight months, we have 
made numerous efforts to get straight answers from the Administration 
regarding the nature, scope and purported legal basis of this program. 
Our efforts were rebuffed by the most flagrant and disrespectful 
stonewalling of any Administration that I have seen in my 32 years in 
Congress.
  While refusing to answer even our most basic questions about its 
secret spying program, the Administration claimed that Congress 
approved the program when it authorized the use of military force in 
Afghanistan--although Attorney General Gonzales had to admit that this 
was an ``evolving'' rationale not present at the time Congress 
considered its action. The Administration claimed that even if they 
violated the Foreign Intelligence Surveillance Act, the President's 
powers and their view of the ``unitary executive'' must trump the law 
and the authority of Congress. Not since the rationalization of Richard 
Nixon for actions during the White House horrors and Watergate scandal 
have we heard such a claim. And, of course, the Administration claimed 
it had all the authority it needed and no new legislation was needed.
  The bill the Chairman negotiated with the White House, in my view, 
contains several fundamental flaws:
  The bill makes compliance with FISA entirely optional, and explicitly 
validates the President's claim that he has unfettered authority to 
wiretap Americans in the name of national security. In other words, it 
suggests that FISA is unconstitutional--a claim for which there is no 
judicial precedent and very little academic support--and invites the 
President to ignore it.
  The bill abandons the traditional, case-by-case review contemplated 
by FISA and introduces the concept of ``program warrants.'' If that 
novel concept is constitutional--which I doubt--a single FISA court 
judge could approve whole programs of electronic surveillance that go 
far beyond the President's program.
  The bill immunizes from prosecution anyone who breaks into a home or 
office in the United States to search for foreign intelligence 
information, if he is acting at the behest of the President. I would 
have thought that electronic surveillance is a large enough area to 
address in one bill. But apparently, the Administration was unwilling 
to address electronic surveillance without also reaching for new powers 
to break into Americans' homes.
  We should not grant that kind of blank check to the Executive for a 
secret program we know little about. Instead, we should consider the 
bipartisan alternative the Judiciary Committee has endorsed. The 
Specter-Feinstein bill is an approach that seeks accountability while 
ensuring tools to mount a strong fight against terrorism.
  The Majority Leader has an opportunity to unite the Senate and 
Americans around this smarter, stronger proposal that will help protect 
Americans as well as the values that we hold dear as a Nation. I hope 
that he seizes that opportunity.
  On a related note, I was a little surprised to hear the Chairman say 
earlier today that the Judiciary Committee was forwarding proposed 
language changes to the War Crimes Act to the Armed Services Committee. 
I agree with the Chairman that amending the War Crimes Act is a matter 
in the jurisdiction of the Judiciary Committee, but I am very concerned 
about the way in which this important issue has come up.
  The Chairman announced yesterday in the middle of a special business 
meeting that the Committee would be discussing a proposal. That was 
news to me and the other Democratic members of the Committee, who had 
not seen nor heard of the proposal. The Chairman said that a bill had 
been distributed Tuesday afternoon, but Democrats were not included in 
any such distribution.
  This is a very serious issue. It certainly requires meaningful review 
and input from Senators of both parties. It is a subject about which I 
care a great deal about.
  This issue is being considered by the Armed Services Committee. 
Senator Warner is working with Senator Levin, and all members of that 
Committee. I understand that they are also consulting with the top 
military lawyer, who have been ignored by this Administration. I have 
seen the letters from GEN Powell and GEN Vessey on the importance of 
upholding our treaty obligation and acting in the best interests of 
protecting Americans throughout the world.
  GEN Powell wrote: The world is beginning to doubt the moral basis of 
our fight against terrorism. To refine Common Article 3 would add to 
those doubts. Furthermore, it would put our own troops at risk. He 
speaks from the perspective of a former chairman of the Joint Chiefs of 
Staff and a former Secretary of State.

[[Page S9627]]

  GEN Vessey signaled what relaxing our adherence to Common Article 3 
of the Geneva Convention would do: ``First, it would undermine the 
moral basis which has generally guided or conduct in war throughout our 
history. Second, it could give opponents a legal argument for the 
mistreatment of Americans being held prisoners in time of war.''
  I worked hard, along with many others of both parties, to pass the 
current version of the War Crimes Act. I think the current law is a 
good law, and the concerns that have been raised about it could best be 
addressed with minor adjustments, rather than with the sweeping changes 
suggested here.
  In 1996, working with the Department of Defense, Congress passed the 
War Crimes Act to provide criminal penalties for certain war crimes 
committed by and against Americans. The next year, again with the 
Pentagon's support, Congress extended the War Crimes Act to violations 
of the baseline humanitarian protections afforded by Common Article 3 
of the Geneva Conventions. Both measures were supported by a broad 
bipartisan consensus, and I was proud to sponsor the 1997 amendments.

  The legislation was uncontroversial for a good reason. The purpose 
and effect of the War Crimes Act as amended was to provide for the 
implementation of America's commitment to the basic international 
standards we subscribed to when we ratified the Geneva Conventions in 
1955. Those standards are truly universal: They condemn war criminals 
whoever and wherever they are.
  That is a critically important aspect of the Geneva Conventions and 
our own War Crimes Act. When we are dealing with fundamental norms that 
define the commitments of the civilized world, we cannot have one rule 
for us and one for them, however we define ``us'' and ``them.''
  I am disturbed by the draft legislation, which seems to narrow the 
scope of the War Crimes Act to exclude certain violations of the Geneva 
Conventions and which could have the effect of retroactively immunizing 
past violations that may have been committed by U.S. personnel.
  The narrowing of these definitions have the potential effect of 
immunizing past war crimes. It also could well prevent us from 
prosecuting rogues who we all agree were out of line like the soldiers 
who mistreated prisoners at Abu Ghraib.
  Many of the despicable tactics used in Abu Ghraib--the use of dogs, 
forced nudity, humiliation of various kinds--do not appear to be 
covered by the narrow definitions this draft would incorporate into the 
War Crimes Act. If this were the law, and the Abu Ghraib abuses had 
come to light after the perpetrators left the military, they might not 
have been brought to justice. The President and the Republican leader 
have conceded that the conduct at Abu Ghraib was abhorrent, and the 
perpetrators did need to be brought to justice. I hope the President 
and Congressional Republicans will not now pass legislation that 
prevents us from bringing people who commit these same despicable acts 
to justice.
  I recognize the concerns about American servicemen and women or 
government employees being subjected to prosecutions for conduct that 
could be seen as ambiguous. I believe the War Crimes Act, as is, would 
not support prosecutions for conduct that was less than abhorrent. 
Indeed, to date, the Bush Administration has not brought a single 
charge pursuant to the War Crimes Act.
  I would support amending the War Crimes Act so that only ``serious'' 
violations of Common Article 3 of the Geneva Conventions were 
prosecutable under the War Crimes Act. This fix would address any 
legitimate fears without creating a list of covered conduct that 
excludes much of the conduct that is most troubling.
  Let me be clear. There is no problem facing us about overzealous use 
of the War Crimes Act by prosecutors. In fact, as far as I can tell, 
the Ashcroft Justice Department and the Gonzales Justice Department 
have yet to file a single charge against anyone for violation of the 
War Crimes Act. Not only have they never charged American personnel 
under the Act, they have never used it to charge terrorists either.
  The President and the Congress should not be in the business of 
immunizing people who have broken the law, made us less safe, turning 
world opinion against us, and undercutting our treaty obligations in 
ways that encourage others to ignore the protections those treaties 
provide to Americans. We should be very careful about any changes we 
make.
  I yield the floor.

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