[Congressional Record Volume 152, Number 125 (Friday, September 29, 2006)]
[Extensions of Remarks]
[Pages E1962-E1963]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                    MILITARY COMMISSIONS ACT OF 2006

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON-LEE

                                of texas

                    in the house of representatives

                       Friday, September 29, 2006

  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong opposition to 
S. 3930, the Military Commissions Act. I oppose this bill because I 
stand strong for our troops. I stand strong for the Constitution. I 
stand strong for the values that have made our country, the United 
States of America, the greatest country in the history of the world. I 
oppose this legislation because it is not becoming a nation that is 
strong in its values, confident of its future, and proud of its ancient 
heritage.
  Mr. Speaker, let us be crystal clear: All Americans, and Democrats 
especially, want those responsible for 9/11 and other terrorist acts to 
be tried fairly and punished accordingly, and we want those convictions 
to be upheld by our courts.
  Democrats want the President to have the best possible intelligence 
to prevent future terrorist attacks on the United States and its 
allies.
  Democrats agreed with the President when he said ``whether the 
terrorists are brought to justice or justice brought to the terrorists, 
justice will be done.'' But Democrats understand that justice requires 
the Congress to establish a system for trying suspected terrorists that 
is fundamentally fair and consistent with the Geneva Conventions.
  We should abide by the Geneva Conventions not out of some slavish 
devotion to international law or desire to coddle terrorists, but 
because adherence to the Geneva Conventions protects American troops 
and affirms American values.
  S. 3930, the compromise before us, includes some improvements that I 
strongly support. For example, evidence obtained through torture can no 
longer be used against the accused. Similarly, the compromise bill 
provides that hearsay evidence can be challenged as unreliable.
  Perhaps the most important improvement over the bill passed by the 
House is that accused terrorists will have the right to rebut all 
evidence offered by the prosecution. As is the case in the existing 
military justice system, classified evidence can be summarized, 
redacted, declassified, or otherwise made available to the accused 
without compromising sources or methods. This change to the bill goes a 
long way toward minimizing the chance that an accused may be convicted 
with secret evidence, a shameful practice favored by dictators and 
totalitarians but beneath the dignity of a great nation like the United 
States. As Senator John McCain said: ``I think it's important that we 
stand by 200 years of legal precedents concerning classified 
information because the defendant should have a right to know what 
evidence is being used.''
  However, I am concerned that there is reason to believe that even 
with this compromise legislation, this system of military commissions 
may lead to endless litigation and get struck down by the courts. Then 
we would find ourselves back here again next year, or 5 years from now, 
trying to develop a system that can finally bring the likes of Khalid 
Sheik Mohammed to justice. Why would we want to give terrorist 
detainees a ``get out of jail free'' card when we can avoid that by 
establishing military commissions that work. As currently written, the 
compromise bill has provisions that could lead to the reversal of a 
conviction.
  Specifically, the bill contains a section that strips the federal 
courts of jurisdiction over habeas corpus petitions filed prior to the 
passage of the Detainee Treatment Act last December on behalf of 
detainees at Guantanamo Bay.
  Mr. Speaker, nine former federal judges were so alarmed by this 
prospect that they were compelled go public with their concerns: 
``Congress would thus be skating on this constitutional ice in 
depriving the federal courts of their power to hear the cases of 
Guantanamo detainees. . . . If one goal of the provision is to bring 
these cases to a speedy conclusion, we can assure from our considerable 
experience that eliminating habeas would be unconstitutional.''
  Mr. Speaker, common Article 3 of the Geneva Convention requires that 
a military commission be a regularly constituted court affording all 
the necessary ``judicial guarantees which are recognized as 
indispensable by civilized peoples.'' Notwithstanding the provision in 
the House bill asserting that the military commissions established 
therein satisfy this standard, the fact is that many other nations will 
disagree. Simply saying so does not make it so. Moreover, they may well 
be right. Consider this, Mr. Speaker:
  The compromise allows statements to be entered into evidence that 
were obtained through cruel, inhuman and degrading treatment and lesser 
forms of coercion if the statement was obtained before passage of the 
Detainee Treatment Act last December.
  To provide limited immunity to government agents involved in the CIA 
detention and interrogation program, the bill amends the War Crimes Act 
of 1996 to encompass only ``grave breaches'' of the Geneva Conventions. 
U.S. agents could not be tried under the War Crimes Act for past 
actions that degraded and humiliated detainees. The bill also limits 
any use of international law such as the Geneva Convention in 
interpreting the War Crimes Act.
  Mr. Speaker, what is sometimes lost sight of in all the tumult and 
commotion is that the reason we have observed the Geneva Conventions 
since their adoption in 1949 is to protect members of our military. But 
as the Judge Advocate Generals pointed out, the compromise bill could 
place United States service members at risk by establishing an entirely 
new international standard that American troops could be subjected to 
if captured overseas. As Rear Admiral Bruce McDonald testified: ``I go 
back to the reciprocity issue that we raised earlier, that I would be 
very concerned about other nations looking in on the United States and 
making a determination that, if it's good enough for the United States, 
it's good enough for us, and perhaps doing a lot of damage and harm 
internationally if one of our servicemen--or women--were taken and held 
as a detainee.''
  What's more, Mr. Speaker, the Geneva Conventions also protect those 
not in uniform--special forces personnel, diplomatic personnel, CIA 
agents, contractors, journalists, missionaries, relief workers and all 
other civilians. Changing our commitment to this treaty could endanger 
them, as well.

  We can fix these deficiencies easily if we only have the will. What 
we should do is recommit the bill with instructions to add two 
important elements: (1) expedited constitutional review of the 
legislation; and (2) a requirement that these military commissions be 
reauthorized after 3 years.
  Under expedited review, the constitutionality of the military 
commission system could be tested and determined quickly and early--
before there are trials and convictions. And it would help provide 
stability and sure-footing for novel legislation that sets up a 
military commissions system unlike anything in American history.
  Such an approach provides no additional rights to alleged terrorists. 
All it does is give the Supreme Court of the United States the ability 
to decide whether the military commissions system under this act is 
legal or not. It simply guarantees rapid judicial review.
  Second, any system of military commissions to deal with detainees 
should be required to be reauthorized in 3 years. There are several 
good reasons for requiring Congress to reaffirm its judgment that such 
tribunals are necessary:
  The Military Commissions Act of 2006 is a far-reaching measure that 
implements an entirely new kind of military justice system outside the 
Uniform Code of Military Justice. It has many complex provisions.
  This legislation has been rushed to the floor. It has numerous 
provisions that are still poorly understood by many in Congress. By 
requiring a reauthorization in 3 years, we give Congress the ability to 
carefully review how this statute is working in the real world.
  Providing for a reauthorization in 3 years is the best way to ensure 
congressional oversight. This reauthorization requirement will allow 
Congress to evaluate the effectiveness of the military commission 
provisions and decide whether they need any modifications in the 
future.
  The reauthorization requirement in the Patriot Act has worked well--
compelling Congress to review how various provisions in the Patriot Act 
have worked. As a result of congressional review, important 
modifications in the Patriot Act were signed into law in January 2006 
when 16 provisions were reauthorized.
  Mr. Speaker, even Republicans on the House Judiciary Committee 
admitted that the only way Congress was able to get information out of 
the Justice Department about the operation of the Patriot Act was that 
Congress had to reauthorize it--similarly, the only way Congress will 
be able to perform proper oversight on military commissions is this 
similar requirement that the program must be reauthorized. The 
reauthorization requirement is a critical tool in Congress' ability to 
hold the administration accountable and review the military commission 
program's performance.
  Mr. Speaker, I cannot recall being asked to render final judgment on 
a matter of such scope, consequence, and moment in so short a period of 
time with such a sparsely developed legislative record. Now is not the 
time to rush blindly forward. Rather, now more than ever, it is 
important to take our time and make the right decision and establish 
the right policy. And the right policy is not to jettison the Geneva 
Convention.
  We should not try to redefine the Geneva Convention. We should not do 
anything to alter our international obligations in an election-year 
rush. We cannot use international

[[Page E1963]]

law only when it is convenient and expedient. Our commitment to the 
Geneva Conventions gives us the moral high ground. This is true in both 
a long war against radical terrorists and a war for the hearts and 
minds of people from every religion and every nation. If we compromise 
our values, the terrorists win. As Senator McCain has said: ``This is 
not about who the terrorists are, this is about who we are.''
  The United States was one of the prime architects of the Geneva 
Conventions and other international laws. Our goal was to protect 
prisoners of war in all kinds of armed conflicts and insure that no one 
would be outside the law of war. Coming shortly after World War II, 
they knew the horrors of war but they still chose to limit the 
inhumanity of war by establishing minimum protections of due process 
and humane treatment, even for those accused of grave breaches of the 
Conventions.
  Mr. Speaker, our Nation has the finest military in the world. Our 
Nation also deserves to have the finest military justice system in the 
world. I oppose S. 3930 because it departs significantly from the tried 
and true procedures established in the UCMJ.
  The United States has long served as the model for the world of a 
civilized society that effectively blends security and human liberty. 
When we refuse to observe the very international standards for the 
treatment of detainees, which we were so instrumental in developing, we 
provide encouragement for others around the world to do the same. Our 
British allies have demonstrated that these traditional principles can 
be adhered to without distinguishing the ability to provide for the 
security of its citizens. We must do likewise.
  Mr. Speaker, the treatment and trials of detainees by the United 
States is too important not to do it right. In the words of Jonathan 
Winthrop, often quoted by President Reagan, ``for we must consider that 
we shall be as a City upon a hill. The eyes of all people are upon 
us.'' Let us act worthy of ourselves and our Nation.
  So, Mr. Speaker, I stand in opposition to this legislation. But I do 
not stand alone. I stand with former Secretary of State Colin Powell. I 
stand with former Chairman of the Joint Chiefs John Vesey. I stand with 
the 9/11 Families Opposed to Administration Efforts to Undermine Geneva 
Conventions. I stand with the retired federal judges and admirals and 
Judge Advocate Generals.
  The bill before us is not the right way to do justice by the American 
people. I therefore cannot support it and I urge my colleagues to 
reject it. We have time to come up with a better product and we should. 
The American people deserve no less. The eyes of the world are upon us. 
Let us act worthy of ourselves.

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