[Congressional Record (Bound Edition), Volume 147 (2001), Part 19]
[Senate]
[Pages 26255-26260]
[From the U.S. Government Publishing Office, www.gpo.gov]



        THE CONTINUING DEBATE ON THE USE OF MILITARY COMMISSIONS

  Assistant Attorney General Chertoff testified on November 28 before 
the Senate Judiciary Committee that ``the history of this Government in 
prosecuting terrorists in domestic courts has been one of unmitigated 
success and one in which the judges have done a superb job of managing 
the courtroom and not compromising our concerns about security and our 
concerns about classified information.''
  I am proud that the Senate Judiciary Committee is playing a role in 
sponsoring this national debate, and I appreciate the participation and 
contributions of all members of the committee--no matter their point of 
view. Leading constitutional, civil rights and military justice experts 
have generously shared their time and analyses with the committee, as 
well as the Attorney General and other representatives of the 
Department of Justice. No one participant, no one person, and no one 
party holds a monopoly on wisdom in this Nation. I know that spirited 
debate is a national treasure. I know what the terrorists will never 
understand, that our diversity of opinion is not a weakness but a 
strength beyond measure.
  I do not cast aspersions on those who disagree with my views on this 
subject. I do not challenge their motives and seek to cower them into 
silence with

[[Page 26256]]

charges of ``fear mongering.'' I challenge their ideas, and praise them 
as patriots in a noble cause.
  Already, our oversight has provided a better picture of how the 
administration intends to use military commissions. According to 
William Safire of the New York Times, Secretary of Defense Donald 
Rumsfeld called the discourse over military commissions ``useful'' and 
is reaching outside the Pentagon for input. It now appears that the 
administration is reconsidering some of the most sweeping terms of the 
President's November 13 military order. On its face, that order has 
broad scope and provides little in the way of procedural protections, 
but the more recent assurances that it will be applied sparingly and in 
far narrower circumstances than is suggested by the language of the 
order have been helpful. While the Judiciary Committee hearings were 
ongoing, the administration clarified its plans for implementation of 
the military order in five critical aspects.
  First, as written, the military order applies to non-citizens in the 
United States, which according to testimony before the committee would 
cover about 20 million people. Two days after we began our series of 
hearings, the President's counsel indicated that military commissions 
would not be held in the United States, but rather ``close to where our 
forces may be fighting.'' Anonymous administration officials have also 
indicated in press reports that there is no plan to use military 
commissions in this country but only for those caught in battlefield 
operations.
  Second, the White House counsel has also indicated that the order 
will only apply to ``non-citizens who are members or active supporters 
of al-Qaida or other international organizations targeting the United 
States'' and who are ``chargeable with offenses against the 
international laws of war.''
  Third, while the military order is essentially silent on the 
procedural safeguards that will be provided in military commission 
trials, the White House counsel has explained that military commissions 
will be conducted like courts-martial under the Uniform Code of 
Military Justice. I have great confidence in our courts-martial system, 
which offers protections for the accused that rival, and in some cases 
even surpass, protections in our Federal civilian courts and includes 
judicial review.
  Fourth, nothing in the military order would prevent commission trials 
from being conducted in secret, as was done, for example, in the case 
of the eight Nazi saboteurs that has most often been cited by the 
administration as its model for this order. However, Mr. Gonzales 
assured us that ``Trials before military commissions will be as open as 
possible, consistent with the urgent needs of national security.'' Mr. 
Chertoff's testimony before the committee was along the same lines.
  This is in sharp contrast to the statements before our hearings that 
the ``proceedings promise to be swift and largely secret, with one 
military officer saying that the release of information might be 
limited to the barest facts, like the defendant's name and sentence.''
  Finally, the order expressly states that the accused in military 
commissions ``shall not be privileged to seek any remedy or maintain 
any proceeding, directly or indirectly . . . in (i) any court of the 
United States, or any State thereof, (ii) any court of any foreign 
nation, or (iii) any international tribunal.'' Yet, the 
administration's most recent statements are that this is not an effort 
to suspend the writ of habeas corpus.
  These explanations of the military order by both anonymous and 
identified administration representatives suggest that, one, the 
administration does not intend to use military commissions to try 
people arrested in the United States; two, these tribunals will be 
limited to ``foreign enemy war criminals'' for ``offenses against the 
international laws of war''; three, the military commissions will 
follow the rules of procedural fairness used for trying U.S. military 
personnel; and four, the judgments of the military commissions will be 
subject to some form of judicial review. We hope that the Attorney 
General's responses to written questions from the committee will 
continue to clarify these critical matters.
  The administration apparently contends that an express grant of power 
from this Congress to establish military commissions is unnecessary. 
The Attorney General testified before the Judiciary Committee on 
December 6 that, ``the President's power to establish war-crimes 
commissions arises out of his power as Commander in Chief.'' A growing 
chorus of legal experts casts doubt on that proposition, however. 
Nevertheless, the administration appears to be adamant about going it 
alone and risking a bad court decision on the underlying legality of 
the military commission. Why take a chance that the punishment meted 
out to terrorists by a military commission will not stick due to a 
constitutional infirmity in the commission's jurisdiction?
  I have received a letter signed by over 400 law professors from all 
over the country, expressing their collective wisdom that the military 
commissions contemplated by the President's Order are ``legally 
deficient, unnecessary, and unwise.'' More specifically, these hundreds 
of legal scholars point out that Article I of the Constitution provides 
that Congress, not the President, has the power to ``define and punish 
. . . Offenses against the Law of Nations.'' Absent specific 
congressional authorization, they say, the order ``undermines the 
tradition of the Separation of Powers.''
  At our last hearing with the Attorney General, some of my colleagues 
on the other side of the aisle suggested that the administration had 
``essentially won'' the argument on military commissions. This 
impression is wholly mistaken and I would urge my colleagues to review 
the record of the hearings before the Senate Judiciary Committee on 
this issue.
  This debate is not about following the polls and playing a game of 
political ``gotcha'' when the cameras are rolling. When more than 400 
law professors speak with one voice, and anyone who has been to law 
school knows that it is no easy matter to get even two law professors 
to agree on something, we must carefully consider their opinion that 
there are serious legal and constitutional problems with the 
President's course of action.
  Their views are consistent with the concerns raised by the 
constitutional and military justice experts who testified before the 
committee. Let me just cite a few examples.
  Retired Air Force Colonel Scott Silliman and law professor Laurence 
Tribe argued that the legal basis of the President's Military Order is 
weak and should be remedied by Congress.
  Cass Sunstein of the University of Chicago recommended that basic 
requirements of procedural justice be met if commissions are 
established.
  Neal Katyal of Yale Law School opined that the order ``usurps the 
power of Congress'' and ignores the focus of our Constitution's 
framework.
  Kate Martin, Director of the Center for National Security Studies 
states that the military order ``violates separation of powers as the 
creation of military commissions has not been authorized by the 
Congress and is outside the President's constitutional powers.'' She 
compares this current situation to that ``[w]hen the Supreme Court 
approved the use of military commissions in World War II'' and 
``Congress has specifically authorized their use in Articles of War 
adopted to prosecute the war against Germany and Japan.''
  Phillip Heymann of Harvard Law School testified that he regards the 
Military Order ``as one of the clearest mistakes and one of the most 
dangerous claims of executive power in the almost fifty years that [he 
has] been in and out of government.''
  Kathleen Clark of Washington University Law School, St. Louis, in 
submitted testimony, examines each of the four sources cited by the 
President for authority for the order and concludes, ``None of these 
authorize the creation of this type of military tribunal.'' She 
concludes that ``In this time of uncertainty and fear, it is as 
important as ever for Congress to ensure that the executive branch 
abides

[[Page 26257]]

by the constitutional limits on its authority.''
  Timothy Lynch, Director of the CATO Institute's Project on Criminal 
Justice contends that ``because Article I of the Constitution vests the 
legislative power in the Congress, not the Office of the President, the 
unilateral nature of the executive order clearly runs afoul of the 
separation of powers principle.''
  Legal experts around the country are concerned that the President's 
order does not comport with either constitutional or international 
standards of due process. As pointed out in the letter from over 400 
law professors, this defect has both practical and legal consequences. 
Legally, it means that the order may be inconsistent with our treaty 
obligations, which under our Constitution are the ``supreme Law of the 
Land.'' Practically, it give political cover to those less democratic 
regimes around the world to mistreat foreign defendants in their 
courts, and thereby places Americans around the world at risk.
  On December 5, I forwarded to the Attorney General in advance of the 
Judiciary Committee hearing proposed legislation to authorize the 
President to establish military tribunals to try terrorists captured 
abroad in connection with the September 11 attacks. In that proposal I 
outlined a number of procedural safeguards to fulfill the President's 
command in his military order for a ``full and fair hearing.'' These 
procedures would bring these tribunals into compliance with our 
Nation's obligations under international law and treaties to which the 
United States is a party.
  The authorization for and literal terms of the order present serious 
questions and require some corrective action. That is why I have 
offered to work with the administration and other members to draft and 
pass legislation that will clearly authorize and establish procedures 
for military commissions.
  Those of us who take an oath of office to uphold the Constitution, 
both in the Congress and the administration, have a duty to do more 
than just listen to the polls. The important thing, after all, is not 
who wins some political debate the important thing is that America gets 
this right.
  I ask unanimous consent to have the law professors' letter dated 
December 5, 2001, and an outline of safeguards and the sources for them 
be printed in the Record.
                                                 December 5, 2001.
     Hon. Patrick J. Leahy,
     Chairman, Senate Judiciary Committee, Russell Senate Office 
         Bldg., U.S. Senate, Washington, DC.
       Dear Senator Leahy: We, the undersigned law professors and 
     lawyers, write to express our concern about the November 13, 
     2001, Military Order, issued by President Bush and directing 
     the Department of Defense to establish military commissions 
     to decide the guilt of non-citizens suspected of involvement 
     in terrorist activities.
       The United States has a constitutional court system of 
     which we are rightly proud. Time and again, it has shown 
     itself able to adapt to complex and novel problems, both 
     criminal and civil. Its functioning is a worldwide emblem of 
     the workings of justice in a democratic society.
       In contrast, the Order authorizes the Department of Defense 
     to create institutions in which we can have no confidence. We 
     understand the sense of crisis that pervades the nation. We 
     appreciate and share both the sadness and the anger. But we 
     must not let the attack of September 11, 2001 lead us to 
     sacrifice our constitutional values and abandon our 
     commitment to the rule of law. In our judgment, the untested 
     institutions contemplated by the Order are legally deficient, 
     unnecessary, and unwise.
       In this brief statement, we outline only a few examples of 
     the serious constitutional questions this Order raises:
       The Order undermines the tradition of the Separation of 
     Powers. Article I of the Constitution provides that the 
     Congress, not the President, has the power to ``define and 
     punish . . . Offenses against the Law of Nations.'' The 
     Order, in contrast, lodges that power in the Secretary of 
     Defense, acting at the direction of the President and without 
     congressional approval.
       The Order does not comport with either constitutional or 
     international standards of due process. The President's 
     proposal permits indefinite detention, secret trials, and no 
     appeals.
       The text of the Order allows the Executive to violate the 
     United States' binding treaty obligations. The International 
     Covenant on Civil and Political Rights, ratified by the 
     United States in 1992, obligates State Parties to protect the 
     due process rights of all persons subject to any criminal 
     proceeding. The third Geneva Convention of 1949, ratified by 
     the United States in 1955, requires that every prisoner of 
     war have a meaningful right to appeal a sentence or a 
     conviction. Under Article VI of the Constitution, these 
     obligations are the ``supreme Law of the Land'' and cannot be 
     superseded by a unilateral presidential order.
       No court has upheld unilateral action by the Executive that 
     provided for as dramatic a departure from constitutional 
     norms as does this Order. While in 1942 the Supreme Court 
     allowed President Roosevelt's use of military commissions 
     during World War II, Congress had expressly granted him the 
     power to create such commissions.
       Recourse to military commissions is unnecessary to the 
     successful prosecution and conviction of terrorists. It 
     presumes that regularly constituted courts and military 
     courts-martial that adhere to well-tested due process are 
     unable to handle prosecutions of this sort. Yet in recent 
     years, the federal trial courts have successfully tried and 
     convicted international terrorists, including members of the 
     al-Qaeda network.
       It is a triumph of the United States that, despite the 
     attack of September 11, our institutions are fully 
     functioning. Even the disruption of offices, phones, and the 
     mail has not stopped the United States government from 
     carrying out its constitutionally-mandated responsibilities. 
     Our courts should not be prevented by Presidential Order from 
     visibly doing the same.
       Finally, the use of military commissions would be unwise, 
     as it could endanger American lives and complicate American 
     foreign policy. Such use by the United States would undermine 
     our government's ability to protest effectively when other 
     countries do the same. Americans, be they civilians, peace-
     keepers, members of the armed services, or diplomats, would 
     be at risk. The United States has taken other countries to 
     task for proceedings that violate basic civil rights. 
     Recently, for example, when Peru branded an American citizen 
     a ``terrorist'' and gave her a secret ``trial,'' the United 
     States properly protested that the proceedings were not held 
     in ``open civilian court with full rights of legal defense, 
     in accordance with international judicial norms.''
       The proposal to abandon our existing legal institutions in 
     favor of such a constitutionally questionable endeavor is 
     misguided. Our democracy is at its most resolute when we meet 
     crises with our bedrock ideals intact and unyielding.
           Respectfully submitted,
       Benjamin Aaron, Professor of Law Emeritus, University of 
     California-Los Angeles School of Law; Kenneth Abbott, 
     Elizabeth Froehling Horner Professor of Law and Commerce, 
     Director, Center for International and Comparative Studies, 
     Northwestern University; Richard L. Abel, Visiting Professor, 
     New York University Law School, Connell Professor, University 
     of California-Los Angeles School of Law; Khaled Abou El Fadl, 
     Acting Professor, University of Califorina-Los Angeles School 
     of Law; Bruce Ackerman, Sterling Professor of Law and 
     Political Science, Yale Law School; Bryan Adamson, Associate 
     Professor of Law, Case Western Reserve University School of 
     Law; Raquel Aldana-Pindell, Assistant Professor of Law, 
     University of Nevada-Las Vegas, William S. Boyd School of 
     Law; Alison Grey Anderson, Professor of Law, University of 
     California-Los Angeles School of Law; Michelle J. Anderson, 
     Associate Professor of Law, Villanova University School of 
     Law; Professor Penelope Andrews, City University of New York 
     School of Law; Fran Ansley, Professor of Law, University of 
     Tennessee College of Law; Keith Aoki, Associate Professor of 
     Law, University of Oregon School of Law; Annette Appell, 
     Associate Professor, University of Nevada-Las Vegas, William 
     S. Boyd School of Law; Jennifer Arlen, Visiting Professor of 
     Law, Yale Law School, Ivadelle and Theodore Johnson Professor 
     of Law & Business, USC Law School; Michael Asimov, Professor 
     of Law Emeritus, University of California-Los Angeles School 
     of Law; Barbara Atwood, Mary Anne Richey Professor of Law, 
     University of Arizona, James E. Rogers College of Law; 
     Michael Avery, Associate Professor, Suffolk Law School; 
     Jonathan B. Baker, Associate Professor of Law, American 
     University, Washington College of Law; Jack Balkin, Knight 
     Professor of Constitutional Law and the First Amendment, Yale 
     Law School; Susan Bandes, Professor of Law, DePaul University 
     College of Law; and Taunya Lovell Banks, Professor of Law, 
     University of Maryland School of Law.
       Roger M. Baron, Professor of Law, University of South 
     Dakota School of Law; Gary Basi, Professor of Law, University 
     of California-Los Angeles School of Law; Joseph Bauer, 
     Professor of Law. University of Notre Dame School of Law; 
     Linda M. Beale, University of Illinois College of Law; John 
     S. Beckerman, Associate Dean for Academic Affairs, Rutgers 
     School of Law--Camden; Leslie Bender, Associate Dean & 
     Professor of Law and Women's Studies, Syracuse University 
     College of Law; Robert Bennett, Northwestern University 
     School of Law; Morris D. Bernstein, Associate Clinical 
     Professor, University of Tulsa College of Law; Arthur Best,

[[Page 26258]]

     Professor of Law, University of Denver College of Law; Jerry 
     P. Black, Jr., Associate Clinical Professor, University of 
     Tennessee College of Law; Gary Blasi, Professor of Law, 
     University of California-Los Angeles School of Law; Cynthia 
     Grant Bowman, Professor of Law, Northwestern University 
     School of Law; Francis A. Boyle, Professor of Law, University 
     of Illinois College of Law; Lynn Branham, Visiting Professor 
     of Law, University of Illinois College of Law; Pamela D. 
     Bridgewater, Associate Professor of Law, American University, 
     Washington College of Law; Thomas F. Broden, Professor 
     Emeritus, University of Notre Dame School of Law; Mark S. 
     Brodin, Professor of Law, Boston College Law School; Ralph 
     Brill, Professor of Law, Chicago-Kent College of Law; Theresa 
     J. Bryant, Executive Director and Director of Public 
     Interest, Career Development Office, Yale Law School; 
     Elizabeth M. Bruch, Practitioner-in-Residence, American 
     University, Washington College of Law; Robert A. Burt, 
     Alexander M. Bickel Professor of Law, Yale Law School; and 
     Emily Calhoun, Professor of Law, University of Colorado.
       Deborah Cantrell, Clinical Lecturer and Director of the 
     Arthur Liman Public Interest Program, Yale Law School; 
     Manuela Carneiro da Cunha, Professor, Department of 
     Anthropology and the College, University of Chicago; William 
     M. Carter, Jr., Esq., Assistant Professor of Law, Case 
     Western Reserve University School of Law; Douglas Cassell, 
     Director, Center for International Human Rights, Northwestern 
     University School of Law; Anthony Chase, Center for 
     International Studies, University of Chicago; Alan K. Chen, 
     Associate Professor, University of Denver College of Law; 
     Ronald K. Chen, Associate Dean for Academic Affairs, Rutgers 
     School of Law--Newark; Paul G. Chevigny, Professor of Law, 
     New York University School of Law; Gabriel J. Chin, Rufus 
     King Professor of Law, University of Cincinnati College of 
     Law; Hiram E. Chodosh, Professor of Law, Director, Frederick 
     K. Cox International Law Center, Case Western Reserve 
     University School of Law; Carol Chomsky, Associate Professor 
     of Law, University of Minnesota Law School, Co-President, 
     Society of American Law Teachers; George C. Christie, James 
     B. Duke Professor of Law, Duke University School of Law; 
     Michael J. Churgin, Raybourne Thompson Centennial Professor 
     in Law, University of Texas School of Law; Kathleen Clark, 
     Professor, Washington University School of Law; Roger S. 
     Clark, Board of Governors Professor, Rutgers School of Law--
     Camden; Sarah Cleveland, Professor of Law, University of 
     Texas School of Law; George M. Cohen, Professor of Law, 
     University of Virginia; David Cole, Georgetown University Law 
     Center; Melissa Cole, St. Louis University School of Law; 
     Robert H. Cole, Professor of Law Emeritus, School of Law 
     (Boalt Hall), University of California at Berkeley; and James 
     E. Coleman, Jr., Professor of the Practice of Law, Duke 
     University Law School.
       Jules Coleman, Wesley Newcomb Hohfeld Professor of 
     Jurisprudence, Yale Law School; Frank Rudy Cooper, Assistant 
     Professor of Law, Villanova University School of Law; 
     Charlotte Crane, Professor of Law, Northwestern University 
     School of Law; Cathryn Stewart Crawford, Assistant Clinical 
     Professor, Northwestern University School of Law; Lisa A. 
     Crooms, Associate Professor, Howard University School of Law; 
     Jerome McCristal Culp, Professor of Law, Duke University Law 
     School; Dennis E. Curtis, Clinical Professor of Law, Yale Law 
     School; Molly D. Current, Visiting Assistant Professor of 
     Law, Chicago-Kent College of Law; Harlon Dalton, Professor of 
     Law, Yale Law School; Karen L. Daniel, Clinical Assistant 
     Professor, Northwestern University School of Law; Thomas Y. 
     Davies, Associate Professor of Law, University of Tennessee 
     College of Law; Angela J. Davis, Professor of Law, American 
     University, Washington College of Law; Ellen E. Deason, 
     Associate Professor, University of Illinois College of Law; 
     Judith E. Diamond, Associate Professor; Brett Dignam, 
     Clinical Professor of Law, Yale Law School; Diane Dimond, 
     Clinical Professor of Law, Duke University Law School; Don 
     Doernberg, James D. Hopkins Professor of Law, Pace University 
     School of Law; Peter A. Donovan, Boston College Law School; 
     Michael B. Dorff, Assistant Professor, Rutgers School of 
     Law--Camden; Norman Dorsen, Fred I. and Grace A. Stokes 
     Professor of Law, New York University School of Law; David M. 
     Driesen, Associate Professor of Law, Syracuse University 
     College of Law; and Steven Duke, Professor of Law, Yale Law 
     School.
       Melvyn R. Durchslag, Professor of Law, Case Western Reserve 
     University School of Law; Fernand N. Dutile, Professor of Law 
     University of Notre Dame School of Law; Stephen Dycus, 
     Professor of Law, Vermont Law School; Howard Eglit, Professor 
     of Law, Chicago-Kent College of Law; Daniel C. Esty, Clinical 
     Professor of Environmental Law and Policy, Yale Law School; 
     Cynthia R. Farina, Professor of Law, Cornell Law School; Neal 
     Feigenson, Professor of Law, Quinnipiac University; Professor 
     Jay M. Feinman, Rutgers School of Law--Camden; Stephen M. 
     Feldman, University of Tulsa; Barbara J. Fick, Associate 
     Professor of Law, University of Notre Dame School of Law; 
     Matthew W. Finkin, Albert J. Harno Professor of Law, 
     University of Illinois; David H. Fisher, Ph.D., Professor of 
     Philosophy, North Central College; Stanley Z. Fisher, 
     Professor of Law, Boston, MA; Scott FitzGibbon, Professor of 
     Law, Boston College Law School, Martin S. Flaherty, Professor 
     of Law, Fordham Law School; Brian J. Foley, Widener 
     University School of Law; Gregory H. Fox, Professor of Law, 
     Chapman University School of Law, Orange, CA; Gary Forrester, 
     Visiting Assistant Professor of Law, University of Illinois 
     College of Law, Mary Louise Frampton, Director, Boalt Hall 
     Center for Social Justice, University of California at 
     Berkeley; Daniel J. Freed, Clinical Professor Emeritus of Law 
     and Its Administration, Yale Law School; Eric Freedman, 
     Professor of Law, Hofstra University School of Law; and Peter 
     B. Friedman, Director of Research, Analysis, and Writing, 
     Case Western Reserve University School of Law;
       Nicole Fritz, Crowly Fellow in International Human Rights, 
     Fordham School of Law; Joseph W. Glannon; Maggie Gilmore, 
     Supervising Attorney, Indian Country Environmental Justice 
     Clinic, Vermont Law School; Peter Goldberger, YLS '75, 
     Attorney, Ardmore, PA; Phyllis Goldfarb, Professor of Law, 
     Boston College Law School; Carmen Gonzalez, Assistant 
     Professor of Law, Seattle University School of Law; Jonathan 
     Gordon, Instructor of Law, Case Western Reserve University 
     School of Law; Robert Gordon, Johnston Professor of Law and 
     History, Yale University; Neil Gotanda, Professor of Law, 
     Western State University; Stephen E. Gottlieb, Professor of 
     Law, Albany Law School; Grayfred B. Gray, Associate Professor 
     Emeritus, University of Tennessee College of Law; Suzanne 
     Greene, Visiting Professor of Law, Chicago-Kent College of 
     Law, Kent Greenfield, Associate Professor, Boston College Law 
     School; Susan R. Gzesh, Director, Human Rights Program, The 
     University of Chicago; Elwood Hain, Professor, Whittier Law 
     School, Colonel (JAG), USAFR (ret); Louise Halper, Professor 
     of Law, Washington & Lee University School of Law; Robert W. 
     Hamilton, University of Texas School of Law; Joel F. Handler, 
     University of California-Los Angeles School of Law; Hurst 
     Hannum, Professor of International Law, The Fletcher School 
     of Law and Diplomacy, Tufts University; Patricia Isela 
     Hansen, Professor of Law, University of Texas Law School; 
     Angela Harris, Professor of Law, School of Law (Boalt Hall), 
     University of California at Berkeley; Mark I. Harrison, Esq.; 
     and Robert Harrison, Yale Law School;
       Melissa Hart, Associate Professor of Law, University of 
     Colorado School of Law; Kathy Hartman, Assistant Dean for 
     Admissions and Financial Aid, Vermont Law School; Lev 
     Hartman, 381 VT Route 66, Randolph, VT 05060; Philip Harvey, 
     Associate Professor of Law & Economics, Rutgers School of 
     Law--Camden; Oona Hathaway, Associate Professor, Boston 
     University School of Law; Joan MacLeod Heminway, University 
     of Tennessee College of Law; Lynne Henderson, Visiting 
     Professor of Law, University of California-Davis School of 
     Law; Susan Herman, Professor of Law, Brooklyn Law School; 
     Kathy Hessler, Case Western Reserve University School of Law; 
     Steven J. Heyman, Professor of Law, Chicago-Kent College of 
     Law; Tracey E. Higgins, Professor of Law, Fordham Law School, 
     Co-Director, Crowley Program in International Human Rights; 
     Barbara Hines, Lecturer/Director of the Immigration Clinic, 
     University of Texas School of Law; W. William Hodes, 
     President, The William Hodes Professional Corporation, 
     Professor Emeritus of Law, Indiana University; Joan H. 
     Hollinger, Visiting Professor of Law, Director, Child 
     Advocacy Program, School of Law (Boalt Hall), University of 
     California at Berkeley; Ruth-Arlene W. Howe, Boston College 
     Law School; Marsha Cope Huie, Visiting Professor of Law, 
     Tulane University; Darren Lenard Hutchinson, Assistant 
     Professor of Law, Southern Methodist University, Deena 
     Hurwitz, Cover/Lowenstein Fellow in International Human 
     Rights Law, Yale Law School; Alan Hyde, Professor and Sidney 
     Reitman Scholar, Rutgers School of Law--Newark; Jonathan M. 
     Hyman, Professor of Law, Rutgers School of Law--Newark; Allan 
     Ides, Loyola Law School; and, Sherrilyn A. Ifill, Associate 
     Professor of Law, University of Maryland School of Law.
       Lisa C. Ikemoto, Professor of Law, Loyola Law School; Craig 
     L. Jackson, Professor of Law, Texas Southern University, 
     Thurgood Marshall School of Law; Quintin Johnstone, Emeritus 
     Professor of Law, Yale Law School; Paul W. Kahn, Robert W. 
     Winner Professor of Law and the Humanities, Yale Law School; 
     David Kairys, James E. Beasley Professor of Law, Beasley 
     School of Law, Temple University; Amy H. Kastely, Professor 
     of Law, St. Mary's University School of Law; Harriet N. Katz, 
     Clinical Professor, Rutgers School of Law--Camden; Lewis R. 
     Katz, John C. Hutchins Professor of Law, Case Western Reserve 
     University School of Law; Andrew H. Kaufman, Esq.; Eileen 
     Kaufmann, Professor of Law, Tauro Law School; Conrad 
     Kellenberg, Professor of Law, University of Notre Dame School 
     of Law; Robert B. Kent, Professor Emeritus, Cornell Law 
     School; Jeffrey L. Kirchmeier, Associate Professor of Law, 
     City University of New York School of Law; Kimberly Kirkland, 
     Professor of Law, Franklin Pierce Law Center; Thomas

[[Page 26259]]

     Klevan, Professor of Law, Thurgood Marshall School of Law; 
     Alvin K. Klevorick, John Thomas Smith Professor Law, Yale Law 
     School; Harold Hongju Koh, Gerard C. and Bernice Latrobe 
     Smith Professor of International Law, Yale Law School; Susan 
     P. Koniak, Professor of Law, Boston University School of Law; 
     Juliet P. Kostritsky, John Homer Kapp Professor of Law, Case 
     Western Reserve University School of Law; Harold J. Krent, 
     Interim Dean and Professor, Chicago-Kent College of Law; 
     Christopher Kutz, Assistant Professor of Law, School of Law 
     (Boalt Hall), University of California at Berkeley; and Maury 
     Landsman, Clinical Professor, University of Minnesota Law 
     School.
       Frederick M. Lawrence, Law Alumni Scholar and Professor of 
     Law, Boston University School of Law; Robert P. Lawry, 
     Professor of Law and Director, Center for Professional 
     Ethics, Case Western Reserve University School of Law; Sylvia 
     R. Lazos, Associate Professor, University of Missouri-
     Columbia School of Law; Terri LeClercq, Ph.D., Fellow, Norman 
     Black Professorship in Ethical Communication in Law, 
     University of Texas School of Law; Brant T. Lee, Associate 
     Professor of Law, University of Akron School of Law; Brian 
     Leiterk Charles I. Francis Professor, University of Texas 
     School of Law; John Leubsdorf, Professor of Law, Rutgers 
     School of Law-Newark; Sanford Levinson, University of Texas 
     School of Law; Cynthia Crawford Lichtenstein, Professor 
     Emerita, Boston College School of Law, Visiting Professor, 
     George Washington University School of Law; Joseph Liu, 
     Assistant Professor, Boston College Law School; Claudio 
     Lomnitz, Professor of History, University of Chicago; Jean 
     Love, Martha-Ellen Tye Distinguished Professor of 
     Law,University of Iowa College of Law; John S. Lowe, George 
     W. Hutchison Professor of Energy Law, Southern Methodist 
     University; Edmund B. Luce, Director of Graduate Programs and 
     Legal Writing Professor, Widener University School of Law; 
     Carroll L. Lucht, Clinical Professor of Law, Yale Law School; 
     Jeana L. Lungwitz, University of Texas School of Law; David 
     Lyons, Boston University; Marko C. Maglich, Attorney, New 
     York; Daniel Markovits, Associate Professor of Law, Yale Law 
     School; Inga Markovits, ``Friends of Jamail'' Regents' Chair 
     in Law, University of Texas; Richard Markovits, John B. 
     Connally Chair in Law, University of Texas; Stephen Marks, 
     Associate Dean for Academic Affairs, Boston University School 
     of Law; and Jerry L. Mashaw, Sterling Professor of Law and 
     Management, Yale Law School.
       Professor Judith L. Maute, University of Oklahoma College 
     of Law; Carolyn McAllaster, Clinical Professor of Law, Duke 
     University School of Law; Marcia L. McCormick, Visiting 
     Assistant Professor, Chicago-Kent College of Law; Melinda 
     Meador, Bass, Berry, and Sims PLC, Knoxville, TN; Michael 
     Meltsner, Visiting Professor of Law, Harvard Law School; Roy 
     M. Mersky, Harry M. Reasoner Regents Chair in Law and 
     Director of Research, Jamail Center for Legal Research, 
     Tarlton Law Library, University of Texas School of Law; Frank 
     I. Michelman, Harvard University; Alice M. Miller, J.D., 
     Assistant Professor of Clinical Public Health, Law and Policy 
     Project, Columbia University School of Public Health; 
     Jonathan Miller, Professor of Law, Southwestern University 
     School of Law; Joseph Scott Miller, Visiting Assistant 
     Professor of Law, Northwestern University School of Law; 
     Elliot S. Milstein, Professor of Law, American University, 
     Washington College of Law; JoAnne Miner, Senior Lecturer, 
     Cornell Law School; Satish Moorthy, Coordinator, Human Rights 
     Program, University of Chicago; Margaret Montoya, University 
     of New Mexico School of Law, Co-President, Society of 
     American Law Teachers; Frederick C. Moss, Associate Professor 
     of Law, Southern Methodist University School of Law; Eleanor 
     W. Myers,Temple University, Beasley Law School; Molly 
     O'Brien, Associate Professor of Law, University of Akron 
     School of Law; Paul O'Neil, Visiting Professor of Law, CUNY 
     School of Law; J.P. Ogilvy, Associate Professor of Law, 
     Columbus School of Law, The Catholic University of America; 
     Diane Orentlicher, American University, Washington College of 
     Law; and Nancy K. Ota, Professor of Law, Albany Law School; 
     Professor Daniel G. Partan, Boston University School of Law.
       Teresa Gotwin Phelps, Professor of Law, University of Notre 
     Dame School of Law; Sidney Picker, Jr., Professor of Law, 
     Case Western Reserve University Law School; Sydelle Pittas, 
     Esq., Pittas/Koenig, Winchester, MA; Zygmunt J.B. Plater, 
     Professor of Law, Boston College Law School; Nancy D. 
     Polikoff, Professor of Law, American University, Washington 
     College of Law; Robert J. Quinn, Esq., Human Rights Program, 
     University of Chicago; Vernellia R. Randall, Professor of 
     Law, University of Dayton; Frank S. Ravitch, Visiting 
     Associate Professor of Law, Syracuse University College of 
     Law; Anthony F. Renzo, Assistant Professor, Vermont Law 
     School; Judith Resnik, Arthur Liman Professor of Law, Yale 
     Law School; Wilhelmina M. Reuben-Cooke, Professor of Law, 
     Syracuse University College of Law; Annelise Riles, Professor 
     of Law, Northwestern University School of Law; David W. 
     Robertson, Professor of Law, University of Texas School of 
     Law; Professor Mary Romero, School of Justice Studies, 
     Arizona State University; Professor Michael Rooke-Ley, Co-
     President-elect, Society of American Law Teachers; Susan 
     Rose-Ackerman, Henry R. Luce Professor of Law and Political 
     Science, Yale Law School; Rand E. Rosenblatt, Professor of 
     Law, Rutgers School of Law--Camden; Stephen A. Rosenbaum, 
     Lecturer in Law, School of Law (Boalt Hall); University of 
     California at Berkeley; Clifford J. Rosky, Post-Graduate 
     Research Fellow, Yale Law School; Gary Rowe, Acting 
     Professor, University of California-Los Angeles School of 
     Law; Len Rubinowitz, Professor of Law, Northwestern 
     University School of Law; and William Rubenstein, Acting 
     Professor, University of California-Los Angeles School of 
     Law.
       David S. Rudstein, Professor of Law, Chicago-Kent College 
     of Law; Marshall Sahlins, Charles F. Grey, Distinguished 
     Service Professor Emeritus, University of Chicago; Richard 
     Sander, Professor of Law, University of California-Los 
     Angeles School of Law; Jane L. Scarborough, Associate 
     Professor of Law, Northeastern University School of Law; 
     Elizabeth M. Schneider, Rose L. Hoffer, Professor of Law, 
     Brooklyn Law School; Ora Schub, Associate Clinical Professor, 
     Children and Family Justice Center, Northwestern University 
     School of Law; Ann Seidman, Adjunct Professor, Boston 
     University School of Law; Robert B. Seidman, Professor 
     Emeritus, Boston University School of Law; Jeff Selbin, 
     Lecturer, School of Law (Boalt Hall), University of 
     California at Berkeley; Elisabeth Semel, Acting Clinical 
     Professor, School of Law (Boalt Hall), University of 
     California at Berkeley; Ann Shalleck, Professor of Law, 
     American University, Washington College of Law; Julie 
     Shapiro, Associate Professor of Law, Seattle University 
     School of Law; Richard K. Sherwin, Professor of Law, New York 
     Law School; Seanna Shiffrin, Professor of Law and Associate 
     Professor of Philosophy, University of California-Los 
     Angeles; Steven Shiffrin, Professor of Law, Cornell 
     University; James J. Silk, Executive Director, Orville H. 
     Schell, Jr., Center for International Human Rights, Yale Law 
     School; Richard Singer, Distinguished Professor, Rutgers Law 
     School--Camden; Professor Ronald C. Slye, Seattle University 
     School of Law; Roy M. Sobelson, Professor of Law, Georgia 
     State University College of Law; Norman W. Spaulding, Acting 
     Professor of Law, School of Law (Boalt Hall), University of 
     California at Berkeley; and Christina Spiesel, Senior 
     Research Associate, Yale Law School, Adjunct Professor of 
     Law, Quinnipiac University School of Law, and Professor Of 
     Law, New York Law School.
       Peter J. Spiro, Professor of Law, Hofstra University Law 
     School; Joan Steinman, Distinguished Professor of Law, 
     Chicago-Kent College of Law; Barbara Stark, Professor of Law, 
     University of Tennessee College of Law; Margaret Stewart, 
     Professor of Law, Chicago-Kent School of Law; Katherine 
     Stone, Professor of Law, Cornell Law School; Victor J. Stone, 
     Professor Emeritus of Law, University of Illinois at Urbana-
     Champaign; Robert N. Strassfeld, Professor of Law, Case 
     Western Reserve University School of Law; Peter L. Strauss, 
     Betts Professor of Law, Columbia Law School; Beth Stephens, 
     Associate Professor of Law, Rutgers-Camden School of Law; 
     Ellen Y. Suni, Professor of Law, University of Missouri-
     Kansas City School of Law; Michael Sweeney, Esq., Eleanor 
     Swift, Professor of Law, School of Law (Boalt Hall), 
     University of California at Berkeley; David Taylor, Professor 
     of Law, Northern Illinois College of Law; Kim Taylor-
     Thompson, Professor, New York University School of Law; Peter 
     R. Teachout, Professor of Constitutional Law, Vermont Law 
     School; Harry F. Tepker, Calvert Chair of Law and Liberty and 
     Professor of Law, University of Oklahoma; Beth Thornburg, 
     Professor of Law, Dedman School of Law, Southern Methodist 
     University; Lance Tibbles, Professor of Law, Capital 
     University Law School; Mark Tushnet, Georgetown University 
     Law Center; Kathleen Waits, Associate Professor, University 
     of Tulsa College of Law; Neil Vidner, Duke University Law 
     School; and Joan Vogel, Professor of Law, Vermont Law School.
       Rhonda Wasserman, Professor of Law, University of 
     Pittsburgh School of Law; Mark Weber, Professor of Law, 
     DePaul University College of Law; Harry H. Wellington, 
     Sterling Professor of Law Emeritus, Yale Law School, 
     Professor of Law, New York Law School; Carwina Weng, 
     Assistant Clinical Professor, Boston College Law School; 
     Jamison Wilcox, Quinnipiac School of Law; Cynthia Williams, 
     Associate Professor, University of Illinois College of Law 
     and Visiting Professor Fordham University Law School; Verna 
     Williams, Assistant Professor of Law, University of 
     Cincinnati College of Law; Harvey Wingo, Professor Emeritus 
     of Law, Southern Methodist University; Stephen L. Winter, 
     Professor of Law, Brooklyn Law School; Zipporah B. Wiseman, 
     Thomas H. Law Centennial Professor of Law, University of 
     Texas; Stephen Wizner, William O. Douglas Clinical Professor 
     of Law, Yale Law School; Arthur D. Wolf, Professor of Law, 
     Western New England College School of Law; Richard Wright, 
     Professor of Law, Chicago-Kent College of Law; Larry Yackle, 
     Boston

[[Page 26260]]

     University School of Law; Professor Ellen Yaroshefsky, Jacob 
     Burns Ethics Center, Cardozo Law School, Yeshiva University; 
     and Karen Kithan Yau, Robert M. Cover Clinical Teaching 
     Fellow, Yale Law School and Member of the Connecticut, 
     Massachusetts and New York State Bars.
                                  ____


              Procedural Safeguards for Military Tribunals

       (i) That the tribunal is independent and impartial--
     Sources: Protocol Additional to the Geneva Conventions of 12 
     August 1949 (Protocol II) Part II, Art. 6, No. 2; 
     International Covenant on Civil and Political Rights (ICCPR), 
     Part III, Art. 14, No. 1; Universal Declaration of Human 
     Rights (UDHR), Art. 10.
       (ii) That the particulars of the offense charged or alleged 
     against the accused are given without delay--Sources: 
     Protocol II, Part II, Art. 6, No. 2(a); ICCPR, Part III, Art. 
     14, No. 3(a) and (c); Statute of the International Criminal 
     Tribunal for former Yugoslavia (ICTY), Art. 20(3), 21(4)(a); 
     Additional Protocol I to the Geneva Conventions (Protocol I), 
     Art. 75(4)(a); U.S. Rules of Courts-Martial (RCM) 308; RCM 
     405(f)(1), (2), and (6); and RCM 602.
       (iii) That the proceedings be made intelligible by 
     translation or interpretation--Sources: ICCPR, Part III, Art. 
     14, No. 3(a) and (f); ICTY, Art. 21(4)(a) and (f); Geneva 
     Convention 3, Art. 105; Implicit in Protocol I, Art. 4(a).
       (iv) That the evidence supporting the conviction is given 
     to the accused, with exceptions only for demonstrable reasons 
     of national security or public safety--Sources: ICCPR, Part 
     III, Art. 14, No. 1; Geneva Convention 3, Art. 105; Protocol 
     I, Art. 75(4)(g); Universal Declaration of Human Rights, Art. 
     11; ICTY 21(4)(e); RCM 308; RCM 405(f)(3) and (5); RCM 
     405(g)(1)(B); RCM 703(f); Military Rules of Evidence (MRE) 
     401.
       (v) That the accused has the opportunity to be present at 
     trial--Sources: Protocol II, Part II, Art. 6, No. 2(e); 
     ICCPR, Part III, Art. 14, No. 3(d); ICTY, Art. 21(4)(d); 
     Implicit in Geneva Convention 3, Art. 99; Protocol I, Art 
     75(4)(e); RCM 804.
       (vi) That the accused may be represented by counsel--
     Sources: ICCPR, Part III, Art. 14, No. 3(b) and (d); ICTY, 
     Art. 21(4)(b) and (d) implicit in Protocol II, Part II, Art. 
     6, No. 2(a); RCM 405(d)(2); RCM 405(f)(4); RCM 506.
       (vi) That the accused has the opportunity to respond to the 
     evidence supporting conviction and present exculpatory 
     evidence--Sources: ICCPR, Part III, Art. 14, No. 3(e); Geneva 
     Convention 3, Art. 105; RCM 405(f)(10) and (11).
       (vii) That the accused has the opportunity to cross-examine 
     adverse witnesses and to offer witnesses--Sources: ICCPR, 
     Part III, Art. 14, No. 3(e); ICTY, Art. 21(4)(e); Geneva 
     Convention 3, Art. 105; Protocol I, Art. 75(4)(g); Universal 
     Declaration of Human Rights, Art. 11; RCM 405(f)(8) and (9); 
     RCM 703(a); MRE 611(b).
       (viii) That the proceeding and disposition are 
     expeditious--Sources: ICCPR, Part III, Art. 14, No. 3(c); 
     ICTY, Art. 20(1), Art. 21(4)(c); implicit in Protocol II, 
     Part II, Art. 6, No. 2(a); Geneva Convention 3, Art 105; 
     Additional Protocol 1 to the Geneva Conventions, Art. 
     75(4)(g); UDHR, Art. 11; RCM 707(a) (calls for arraignment 
     within 120 days).
       (ix) That reasonable rules of evidence, designed to ensure 
     admission only of material with probative value, are used--
     Sources: This is a suggestion made by Cass Sunstein in 
     testimony before the Judiciary Cmte on 12/4/2001; it responds 
     to section 4(c)(3) of the President's military order; see 
     also Geneva Convention 3, Art 103; Protocol I, Art. 75(4)(a); 
     MRE 401-403 (NOTE: protections are nearly equal to safeguards 
     in federal civilian courts).
       (x) That before and after the trial, the accused is 
     afforded all necessary means of defense--Sources: Protocol 
     II, Part II, Art. 6, No. 2(a); ICCPR, Part III, Art. 14, No. 
     3(b).
       (xi) That conviction is based only upon proof of individual 
     responsibility for the offense--Sources: Protocol II, Part 
     II, Art. 6, No. 2(b); ICTY, Art. 21(4)(b); Geneva Convention 
     3, Art. 105.
       (xii) That conviction is not based upon acts, offenses or 
     omissions which were not offenses under the law at the time 
     they were committed--Sources: Protocol II, Part II, Art. 6, 
     No. 2(c); UDHR, Art. 11(2); ICTY, Art 7; Protocol I, Art. 
     75(4)(b).
       (xiii) That the penalty for an offense is not greater than 
     it was at the time that the offense was committed--Sources: 
     Protocol II, Part II, Art. 6, No. 2(c); UDHR, Art. 11(2); 
     ICTY, Art. 10; ICCPR, Art. 15; Protocol I, Art. 75(4)(c).
       (xiv) That the accused is presumed innocent until proved 
     guilty--Sources: Protocol II, Part II, Art. 6, No. 2(d); 
     ICCPR, Part III, Art. 14, No. 2; Art. 15; UDHR, Art. 11(1); 
     ICTY, Art. 21(3); Protocol I, Art. 75(4)(c).
       (xv) That the accused is not compelled to confess guilt or 
     testify against himself--Sources: Protocol II, Part II, Art. 
     6, No. 2(f); ICCPR, Part III, Art. 14, No. 3(g); ICTY, Art. 
     21(4)(g); RCM 405(f)(7); MRE 301; Implicit in Geneva 
     Convention 3, Art 99; Protocol I, Art. 75(4)(d).
       (xvi) That the trial is open and public, including public 
     availability of the transcripts of the trial and 
     pronouncement of judgment, with exceptions only for 
     demonstrable reasons of national security or public safety--
     Sources: ICCPR, Part III, Art. 14, No. 1; ICTY,. Art. 20(4) 
     and 21(2); Protocol I, Art. 75(4)(f); RCM 806; RCM 922; RCM 
     1007.
       (xvii) That a convicted person is informed of remedies and 
     appeals and the time limits for the exercise thereof--
     Sources: Protocol II, Part II, Art. 6, No. 3; ICCPR, Part 
     III, Art. 14, No. 5; UDHR, Art. 10, 11; Protocol I, Art. 
     75(4)(i); RCM 1010.
       (xviii) That a convicted person is informed of remedies and 
     appeals and the time limits for the exercise thereof--
     Sources: Protocol II, Part II, Art. 6, No. 3; ICCPR, Part 
     III, Art. 14, No. 5.; Geneva Convention 3, Art 106; Protocol 
     I, Art. 75(4)(j) [to be informed if available]; UDHR, Art. 
     14; ICTY, Art 25.

  Mr. LUGAR. Mr. President, I want to take advantage of the presence of 
the distinguished Senator from Vermont and the present chairman of the 
Agriculture Committee, who are the sole survivors of the agriculture 
debate today. This may be indicative of the kind of stamina required 
for this work.
  It would be my hope to proceed in morning business to, in fact, give 
a statement about national security. I ask the Chair informally, 
because he has had a very long week, and I had not anticipated that he 
would be assuming this responsibility--nor do I wish to take advantage 
of that--if I may, I would like to proceed in morning business.
  The PRESIDING OFFICER (Mr. Harkin). Without objection, it is so 
ordered.

                          ____________________