[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.
____________________