[Congressional Record Volume 152, Number 124 (Thursday, September 28, 2006)]
[Senate]
[Pages S10352-S10354]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          MILITARY COMMISSIONS

  Mr. DODD. Mr. President, America was attacked on September 11, 2001, 
by a ruthless enemy of our Nation. It is my strong belief, as I believe 
it is the belief of all of us in this Chamber, that those who are 
responsible for orchestrating this plot and anyone else who seeks to do 
harm to our country and citizens should be brought to the bar of 
justice and punished severely. On that I presume there is no debate 
whatsoever.
  These are extraordinary times, and we must act in a way that fully 
safeguards America's national security. That is why I support the 
concept of military commissions: to protect U.S. intelligence and 
expedite judicial proceedings vital to military action under the 
Uniform Code of Military Justice. As we develop such means, we must 
also ensure our actions are not counterproductive to our overall effort 
to protect America at all levels.
  The administration and the Republican leadership on this issue would 
have the American people believe--and this is the unfortunate point--
that the war on terror requires us to make a choice, both here in this 
Chamber and across the country, between protecting America from 
terrorism and the choice of upholding the basic tenets upon which our 
Nation was founded--but not both. This canard, in my view, has been 
showcased far too often.
  I fully reject that reasoning. Americans throughout the previous 200 
years have as well. We can and must balance our responsibilities to 
bring terrorists to justice while at the same time protecting what it 
means to be an American. To choose the rule of law over the passion of 
the moment takes courage, but it is the right thing to do if we are to 
uphold the values of equal justice and due process that are codified in 
our Constitution.
  Our Founding Fathers established the legal framework of our country 
on the premise that those in government are not infallible. America's 
leaders knew this 60 years ago when they determined how to deal with 
Nazi leaders guilty of horrendous crimes. There were strong and 
persuasive voices at that time crying out for the summary execution of 
those men who had commanded with ruthless efficiency the slaughter of 6 
million innocent Jews and 5 million other innocent men and women. After 
World War Two, our country was forced to decide whether the accused 
criminals deserved trial or execution.

  There was an article written recently by Professor Luban, a professor 
at Georgetown University, titled ``Forget Nuremberg--How Bush's new 
torture bill eviscerates the promise of Nuremberg.'' I ask unanimous 
consent that the entire article be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

 Forget Nuremberg: How Bush's New Torture Bill Eviscerates the Promise 
                              of Nuremberg

                          (By David J. Luban)

       The burning question is: What did the Bush administration 
     do to break John McCain when a North Vietnamese prison camp 
     couldn't do it?
       Could it have been ``ego up''? I'm told ego up is not 
     possible with a U.S. senator. That probably also rules out 
     ego down. Fear up harsh? McCain doesn't have the reputation 
     of someone who scares easily. False flag? Did he think they 
     were sending him to the vice president's office? No, he 
     already knew he was in the vice president's office. Wait, I 
     think I know the answer: futility--which the Army's old field 
     manual on interrogation defined as explaining rationally to 
     the prisoner why holding out is hopeless. Yes, the 
     explanation must be that the Bush lawyers would have 
     successfully loopholed any law McCain might write, so why 
     bother? Futility might have done the trick.
       How else can we explain McCain's surrender this week on the 
     torture issue, one on which he has been as passionate in the 
     past as Lindsey Graham was on secret evidence?
       Marty Lederman at Balkinization explains here and here some 
     of the worst bits of the proposed ``compromise legislation'' 
     on detainee treatment. But the fact is, virtually every word 
     of the proposed bill is a capitulation, including ``and'' and 
     ``the.'' And yesterday's draft is even worse than last 
     week's. It unexpectedly broadens the already broad definition 
     of ``unlawful enemy combatant'' to include those who fight 
     against the United States as well as those who give them 
     ``material support''--a legal term that appears to include 
     anyone who has ever provided lodging or given a cell phone to 
     a Taliban foot soldier out of sympathy with his cause. Now, 
     not only the foot soldier but also his mom can be detained 
     indefinitely at Guantanamo.
       But the real tragedy of the so-called compromise is what it 
     does to the legacy of Nuremberg--a legacy we would have been 
     celebrating next week at the 60th anniversary of the 
     judgment.
       What does the bill do to Nuremberg? Section 8(a)(2) holds 
     that when it comes to applying the War Crimes Act, ``No 
     foreign or international sources of law shall supply a basis 
     for a rule of decision in the courts of the United States in 
     interpreting the prohibitions enumerated in subsection 
     2441(d).'' That means the customary international law of war 
     is henceforth expelled from U.S. war-crime law--ironic, to 
     say the least, because it was the U.S. Army's Lieber Code 
     that formed the basis for the Law of Armed Conflict and that 
     launched the entire worldwide enterprise of codifying 
     genuinely international humanitarian law.
       Ironic also because our own military takes customary LOAC 
     as its guide and uses it to train officers and interrogators. 
     Apparently there is no need to do that anymore, at least when 
     it comes to war crimes. That means goodbye, International 
     Committee of the Red Cross; the Swiss can go back to their 
     fondue and cuckoo clocks. It also means goodbye, 
     jurisprudence of the Yugoslav tribunal, which the United 
     States was instrumental in forming.
       And also goodbye, Nuremberg.
       Sept. 30 and Oct. 1 mark the 60th anniversary of the 
     tribunal's judgment. If the opening chapters of Telford 
     Taylor's superb The Anatomy of the Nuremberg Trials make one 
     thing crystal clear, it's the burning desire of the United 
     States to create international law using those trials. 
     Great Britain initially opposed the Nuremberg trials and 
     urged simply shooting top Nazis, out of fear they would 
     use the trials for propaganda. Stalin favored conducting 
     trials, but only to establish punishments, not guilt. Like 
     Great Britain, he thought punishing the top Nazis should 
     be a political, and not a legal, decision. The trials 
     happened as they did only because the United States 
     insisted on them for purposes of establishing future law--
     a task that summary justice at executive say-so could 
     never have done.
       At the London conference that wrote the Nuremberg Charter, 
     France and Russia both objected to criminalizing aggressive 
     war for anybody but the Axis countries. But Supreme Court 
     Justice Robert Jackson, the American representative, insisted 
     that creating universally binding international law was the 
     prime purpose of the tribunal.
       A compromise left the international status of Nuremberg law 
     ambiguous--the tribunal's jurisdiction covered only the Axis 
     countries, but nowhere does the charter suggest that the 
     crimes it was trying were only crimes if committed by the 
     Axis powers. Because of this ambiguity, the status of the 
     Nuremberg principles as international law was not established 
     until 1950, when the U.N. General Assembly proclaimed seven 
     Nuremberg Principles to be international law. The American 
     agenda had finally prevailed.
       Well, forget all that as well. The Nuremberg Principles, 
     like the entire body of international humanitarian law, will 
     now have no purchase in the war-crimes law of the United 
     States. Who cares whether they were our idea in the first 
     place? Principle VI of the Nuremberg seven defines war crimes 
     as ``violations of the laws or customs of war, which include, 
     but are not limited to . . . ill-treatment of prisoners of 
     war.'' Forget ``customs of war''--that sounds like customary 
     international law, which has no place in our courts anymore. 
     Forget ``ill-treatment''--it's too vague. Take this one: 
     Principle II, ``The fact that internal law does not impose a 
     penalty for an act which constitutes a crime under 
     international law does not relieve the person who committed 
     the act from responsibility under international law.'' 
     Section 8(a)(2) sneers at responsibility under international 
     law. Or Principle IV: ``The fact that a person acted pursuant 
     to order of his Government or of a superior does not relieve 
     him from responsibility under international law , provided a 
     moral choice was in fact possible to him.'' Moral, shmoral. 
     The question is, do you want the program or don't you?
       The Nuremberg trials presupposed something about the human 
     conscience: that moral choice doesn't take its cues solely 
     from narrow legalisms and technicalities. The new detainee 
     bill takes precisely the opposite stance: Technicality now 
     triumphs over conscience, and even over common sense. The 
     bill introduces the possibility for a new cottage industry: 
     the jurisprudence of pain. It systematically distinguishes 
     ``severe pain''--the hallmark of torture--from (mere) 
     ``serious'' pain--the hallmark of cruel and degrading 
     treatment, usually thought to denote mistreatment short of 
     torture. But then it defines serious physical pain as 
     ``bodily injury that involves . . . extreme physical pain.'' 
     To untutored ears, ``extreme'' sounds very similar to 
     ``severe''; indeed, it sounds even worse than ``severe.'' But 
     in any case, it certainly sounds worse than ``serious.'' 
     Administration lawyers can have a field day rating painful 
     interrogation tactics on the Three Adjective Scale, leaving 
     the rest of us to shake our heads at the essential lunacy of 
     the enterprise.
       And then there is section 8(3), which says that ``the 
     President has the authority for the United States to 
     interpret the meaning and application of the Geneva 
     Conventions.'' Section (B) makes it clear that his 
     interpretation ``shall be authoritative (as to non-grave 
     breach provisions).''

[[Page S10353]]

       On Aug. 1, 2006, The Onion ran a story headlined ``Bush 
     Grants Self Permission To Grant More Power to Self.'' It 
     began: ``In a decisive 1-0 decision Monday, President Bush 
     voted to grant the president the constitutional power to 
     grant himself additional powers.'' It ended thusly: 
     ``Republicans fearful that the president's new power 
     undermines their ability to grant him power have proposed a 
     new law that would allow senators to permit him to grant 
     himself power.'' How life imitates art! In the end, the three 
     courageous Republican holdouts didn't want the president 
     unilaterally trashing Geneva. Now it turns out that the 
     principle they were fighting for was simply Congress' 
     prerogative to grant him the unreviewable power to do so.

  Mr. DODD. He pointed out something that needs to be made clear. He 
said:

       Make one thing crystal clear, it's the burning desire of 
     the United States to create international law using those 
     trials. Great Britain initially opposed the Nuremberg trials 
     and urged simply shooting top Nazis out of fear, they would 
     use the trials for propaganda. Stalin favored conducting 
     trials only to establish punishments, not guilt. Like Great 
     Britain, he thought punishing the top Nazis should be a 
     political, and not a legal, decision. The trials happened as 
     they did only because the United States insisted on them for 
     purposes of establishing future law--a task that summary 
     justice at executive say-so could never have done.
       At the London conference that wrote the Nuremberg Charter, 
     France and Russia both objected to criminalizing aggressive 
     war for anybody but the Axis countries. But Supreme Court 
     Justice Robert Jackson, the American representative insisted 
     that creating universally binding international law was the 
     prime purpose of the tribunal.

  And he prevailed in that argument.
  The history is particularly poignant to me because my father, who 
served in this body, from whose desk I speak this morning, served as 
Robert Jackson's No. 2, as the executive trial counsel at Nuremberg. 
Mr. President, the Nuremberg trials rendered their first judgment 60 
years ago. What an irony indeed that 60 years ago this Saturday, one of 
the great, if not the greatest, trials of the 20th century was taking 
us to a point where we are now codifying and moving to international 
law. The enemies of the United States were not given the opportunity to 
walk away from their crimes. Rather, they were given the right to face 
their accusers, the right to confront evidence against them, the right 
to a fair trial. Underlying that decision was the conviction that this 
Nation must not tailor its most fundamental 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.
  As we approach this 60th anniversary, I think it is important to 
reflect on the implications of the past as we face new challenges, new 
enemies, and new decisions. Much as our actions in the postwar period 
affected our Nation's standing in the world, so, too, do our actions in 
the post- 9/11 era.
  The Armed Services Committee, and I have great respect for my friend, 
John Warner, decided not to rubberstamp the administration's 
legislation. Instead they worked in a bipartisan way to craft a more 
narrowly tailored approach. Unfortunately, the bill we are discussing 
today is not the one that passed out of that committee. The bill before 
us today was worked out between several of our Republican colleagues 
and the White House and does not contain the improvements over the Bush 
administration's original proposal. I remain concerned about several 
provisions in the pending legislation.
  The bill would strip detainees of their habeas corpus rights. The 
eloquent remarks of Arlen Specter yesterday should be read by everyone. 
This longstanding tradition of our country that is about to be 
abandoned here will be one of the great mistakes I think history will 
record. There are strong beliefs among Senators on both sides that this 
provision is not only inadvisable but flatly unconstitutional as well. 
We must do everything in our power to protect our country from threats 
to our national security, but it is also incumbent upon every one of us 
to protect the very foundation upon which our Nation was established. 
This legislation will not achieve those aims.
  I support the efforts, certainly of those who are trying to improve 
this bill, but I wish to conclude these remarks by quoting Justice 
Jackson. Justice Jackson said at the conclusion of the Nuremberg 
trials:

       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 lips as well.

  To rubberstamp the administration's bill, in my view, would poison 
one of the most fundamental principles of American democracy. I urge my 
colleagues not to move in that direction.
  Also, if I can, I wish to read from this article which was written by 
Mr. Luban, talking about the Nuremberg trials, because it is an 
important moment in our history. He said:

       The Nuremberg trials presupposed something about the human 
     conscience: that moral choice doesn't take its cues solely 
     from narrow legalisms and technicalities. The new detainee 
     bill takes precisely the opposite stance: technicality now 
     triumphs over conscience, and even over common sense. The 
     bill introduces the possibility for a new cottage industry: 
     the jurisprudence of pain. It systematically distinguished 
     ``severe pain''--the hallmark of torture--from mere 
     ``serious'' pain--the hallmark of cruel and degrading 
     treatment, usually thought to denote mistreatment short of 
     torture. But then it defines serious pain as ``bodily injury 
     that involves . . . extreme physical pain.'' To untutored 
     ears, ``extreme'' sounds very similar to ``severe''; indeed, 
     it sounds even worse than ``severe.'' But in any case, it 
     certainly sounds worse than ``serious.''

  Administration lawyers can have a field day in the coming years 
reading painful interrogation tactics on the Three Adjective Scale, 
leaving the rest of us to shake our heads at the essential lunacy of 
the enterprise.
  It is about conscience. It is the fundamental principle which we 
enshrined and fought for. It was the United States of America that 
stood and insisted that our allies try to do something to avoid future 
conflicts, 60 years ago this Saturday. To watch the Senate, on the 
anniversary of the Nuremberg trials, step away from that great 
tradition, those great principles enshrined at that time, I think is 
one of the saddest days I have ever seen in this Senate in my almost 30 
years serving in this body.
  I hope my colleagues, with a few days to go before the election, put 
this aside. Let's come back afterward and think more clearly. Too much 
of politics is written into these decisions. This is the United States 
of America.
  The PRESIDING OFFICER (Ms. Murkowski). The time of the Senator has 
expired.
  Mr. DODD. I yield the floor.
  Several Senators addressed the Chair.
  Mr. WARNER. Madam President, will the distinguished leader allow me 
to say a few words?
  I listened very intently. The Senator from Connecticut and I have, 
over many years, formed a very close personal and professional working 
relationship. I know the deep, abiding respect you have for your father 
and his work, particularly at that historic moment in the history of 
world jurisprudence, the Nuremberg trials. I regret that you perceive 
that this bill on the floor falls short of your idea of the goals. But 
I assure you the group with which I worked did everything we could--and 
I think we have succeeded, I say in all respects--certainly with regard 
to the 1949 treaty, which, as you know, was in four parts, and the 
Common Article 3 to all four of those treaties, preserving this 
Nation's obligations under that treaty.
  So while we have our differences, I just wish to conclude that I 
respect you greatly for the admiration you have for your father, as do 
I have for my father, who was a doctor during that period. I thank you 
for the opportunity to listen to you.
  Mr. DODD. If I may respond to my colleague from Virginia, for whom I 
have the greatest respect, it is not only my love and affection for my 
father; more importantly, it is my love and affection for what he and a 
group of Americans did at a time when others said abandon the rule of 
law: They stood up at a time when it was tempting not to do so. World 
opinion certainly was against them in many ways. These were dreadful 
human beings. These people murdered millions, incinerated millions of 
people. Yet people such as my father and Robert Jackson and others 
stood up and said: No, we are going to be different than they are. The 
rule of law is so critically important to us that we want to show the 
civility of this great country of ours and how the last part of the 
20th century can be conducted differently. It is not just my affection 
for my father; it is more the affection for what they did in

[[Page S10354]]

a moment, against public opinion, to set the gold standard and set us 
apart.
  We have been known as the nation of Nuremberg. My fear is now we will 
be known as the nation of Guantanamo, and I worry about that.
  Mr. WARNER. We have our differences, if I may say, but that was a war 
of state-sponsored nations and aggressions, men wearing uniforms, men 
acting at the direction of recognized governments. Today's war is a 
disparate bunch of terrorists, coming overnight, no uniforms, no 
principles, guided by nothing. We are doing the best we can as a 
nation, under the direction of our President, to defend ourselves.
  Mr. DODD. If our colleague would yield, I do not disagree, but I 
don't think there is a choice between upholding the principles of 
America and fighting terrorism. Every generation of Americans will face 
their own threats. This is ours. Every previous generation faced 
serious threats, and they did not abandon the principles upon which 
this country is founded. I am fearful we are going to do that today.
  Mr. WARNER. I disagree with my friend, and I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. REID. For this little conclusion, I will use leader time.
  I ask unanimous consent that 5 minutes from Senator Rockefeller and 
Senator Kennedy--they both have a half hour on their respective 
amendments--be transferred to Senators Clinton and John Kerry. They 
will each have 5 minutes to speak. And that I have 12 minutes under my 
control remaining on the bill and that time be equally divided between 
Senators Feinstein and Feingold. They will each have 6 minutes to speak 
on the bill.
  Mr. WARNER. Madam President, reserving the right to object, and I 
will not object, but I listened carefully. You courteously advised me 
that this request works within the confines of the standing unanimous 
consent, is my understanding, in terms of the allocation of time.
  Mr. REID. This adds no time to the bill.
  Mr. WARNER. That is correct. I wanted to make that clear to my 
colleagues.
  Mr. LEAHY. Reserving the right to object. I shall not, of course. As 
a matter of clarification, there is still some specific time reserved 
to the Senator from Vermont; is that correct?
  The PRESIDING OFFICER. There remains 23 minutes on the bill.
  Mr. REID. That is 23 minutes, plus the good offices of Senator 
Specter may give the Senator additional time.
  Mr. LEAHY. Thank you.

                          ____________________