[Congressional Record (Bound Edition), Volume 148 (2002), Part 11]
[Senate]
[Pages 15658-15660]
[From the U.S. Government Publishing Office, www.gpo.gov]




                AMERICAN SERVICEMEMBERS' PROTECTION ACT

  Mr. LEAHY. Mr. President, I read with interest the statement that 
Representative Hyde made on July 23, 2002 about the American 
Servicemembers' Protection Act (ASPA) during House consideration of the 
conference report on H.R. 4775, the fiscal year 2002 Supplemental 
Appropriations bill for Further Recovery From and Response to Terrorist 
Attacks on the United States.
  Although neither Mr. Hyde nor his staff were present during the 
negotiations on ASPA, he suggests that the House readily accepted 
section 2015, also known as the ``Dodd-Warner amendment'', which was 
unanimously included in the Senate-passed version of ASPA. I do not 
think it is necessary to engage in an exhaustive discussion of the 
legislative history of the Dodd-Warner amendment because it is clear on 
its face. And, the first rule of legislative interpretation is that one 
looks to the history only if a provision is ambiguous.
  To the extent that the legislative history is relevant, I believe 
that I can comment on this issue, as I was involved with the drafting 
of the amendment and was an original co-sponsor. Moreover, I was 
involved in negotiations over section 2015 during the conference on the 
Supplemental, and my staff was actively engaged in discussion on this 
issue throughout.
  Contrary to Mr. Hyde's suggestion that the House receded on section 
2015 because it is ineffectual, the House understood that the effect of 
the Dodd-Warner amendment is to qualify provisions of ASPA, including 
sections 2004, 2006, and 2011, in cases involving foreign nationals. It 
was for that reason that the House conferees repeatedly and vigorously 
sought to remove all or part of it from the conference report.
  Those present at the negotiations know that the House agreed to 
accept the Dodd-Warner amendment only

[[Page 15659]]

when the Senate agreed to drop its provision related to the United 
Nations Population Fund (UNFPA), which House supporters of ASPA 
strongly opposed.
  Mr. Hyde also asserts that section 2015 ``simply reiterates that this 
legislation does not apply to international efforts besides the 
International Criminal Court to bring to justice foreign nationals 
accused of genocide, war crimes, or crimes against humanity.'' As a 
former prosecutor and Chairman of the Senate Judiciary Committee, I 
appreciate the creativity of Mr. Hyde's argument. But he is trying to 
put a square peg into a round hole, and one would have to rewrite the 
provision to support his interpretation. The flaws in this 
interpretation are self-evident, if one simply reads the text of 
section 2015:

       Nothing in this title shall prohibit the United States from 
     rendering assistance to international efforts to bring to 
     justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, 
     other members of Al Qaeda, leaders of Islamic Jihad, and 
     other foreign nationals accused of genocide, war crimes or 
     crimes against humanity.

  The language of this section is clear, and it is noteworthy that any 
iteration of the phrase ``besides the International Criminal Court'' 
does not appear anywhere in the text.
  In fact, when Senator Dodd and I were drafting this amendment, I 
specifically added the phrase ``and other foreign nationals accused of 
genocide, war crimes or crimes against humanity'' to ensure that this 
section would apply to the International Criminal Court (ICC). The ICC 
currently has jurisdiction over these three crimes.
  As I mentioned earlier, the importance of this phrase was not lost on 
the House, and opponents of the Dodd-Warner amendment tried repeatedly 
to nullify or remove it. It was even reported to me that, at the 
eleventh hour, House staff members sought, unsuccessfully, to insert 
the word ``other'' before the phrase ``international efforts to bring 
to justice . . .'', in an attempt to prevent the Dodd-Warner amendment 
from applying to the ICC and heavily qualifying portions of ASPA.
  Another important phrase in section 2015 is: ``Nothing in this title 
shall prohibit . . .'', which makes unequivocally clear that no 
provision in ASPA prevents the U.S. from cooperating with the ICC in 
cases involving foreign nations.
  No one disputes the fact that Congress has serious concerns about 
Americans coming before the ICC, which is the reason that ASPA was 
passed. During consideration of ASPA, Senator Warner made that point 
clear:

       This amendment would protect U.S. military personnel and 
     other elected and appointed officials of the U.S. government 
     against potential criminal prosecution by an international 
     tribunal court to which the United States is not a party.

  However, through the Dodd-Warner amendment, Congress sets a different 
standard with respect to non-Americans. Congress wanted to be clear 
that the U.S. can cooperate with international efforts, including those 
by the ICC, to bring foreign nationals to justice for genocide, war 
crimes, and crimes against humanity, as Senator Dodd pointed out during 
the Senate debate:

       My amendment merely says that despite whatever else we have 
     said, when it comes to prosecuting these people, we would 
     participate and help, even though we are not a signatory or 
     participant in the International Criminal Court.

  This is precisely why the Senate unanimously accepted the Dodd 
amendment and why the lead sponsor of ASPA, Senator Warner, joined as 
co-sponsor of the amendment.
  I see that Chairman Byrd is here on the floor and I would ask if he 
agrees with my recollection of events that transpired during the 
conference negotiations on the Supplemental and my interpretation of 
the Dodd-Warner amendment.
  Mr. BYRD. I agree with what Senator Leahy has said about section 2015 
of the Supplemental Appropriations bill. The House strongly resisted 
efforts to incorporate the Dodd-Warner amendment in the bill, and 
receded only in exchange for the Senate agreeing to drop a provision on 
UNFPA.
  Mr. LEAHY. I thank the Chairman. I want to take this opportunity to 
say a few words about the importance of section 2015. A primary reason 
for the creation of the ICC is to remove the uncertainty and protracted 
negotiations surrounding the establishment of ad hoc tribunals to try 
those accused of genocide, war crimes, and crimes against humanity. In 
the future, the ICC may be the only venue for bringing to justice those 
accused of these heinous crimes.
  The Dodd-Warner amendment simply ensures that the United States can 
assist the ICC, or other international efforts, to try foreign 
nationals accused of war crimes, genocide, and crimes against humanity. 
It is not difficult to think of a number of instances when it would be 
in the interest of the United States to support such efforts. For 
example:
  What if 50 Americans, traveling overseas, are brutally killed by a 
suicide bomber and the ICC attempts to bring to justice the 
perpetrators of this horrendous act?
  What if a group of terrorists commits war crimes against U.S. 
military personnel who are posted abroad and the ICC is involved with 
efforts to bring them to justice?
  What if the ICC prosecutes some future Saddam Hussein, Slobodan 
Milosovic, or Osama bin Laden who is responsible for the deaths of 
thousands of people?
  Would we want the President of the United States to be hamstrung by 
ASPA in these, or a number of other cases, and prevented from actively 
supporting efforts by the ICC to bring these types of notorious 
criminals to justice? Of course not.
  Finally, I want to point out that Mr. Hyde also goes to great lengths 
to provide an interpretation of sections 2004, 2006, and 2011. Although 
I was not involved with the negotiations on ASPA with the 
Administration, I must say that the State Department's efforts with the 
House on this issue were miserable, and I know this is not typical of 
the way the Department represents U.S. interests abroad.
  The explanation that the State Department offers for supporting ASPA 
is that it did so in exchange for releasing the U.N. dues. This does 
not withstand the most basic scrutiny.
  In the wake of the September 11 attacks, there was overwhelming 
support in Congress to assist with efforts to prevent and respond to 
international terrorism. After September 11, without any quid-pro-quo, 
the Senate voted to confirm Ambassador John Negroponte to the position 
of U.S. representative to the United Nations. I am confident that the 
State Department, with a little ingenuity, could have persuaded the 
Republican majority in the House to meet our obligations to the United 
Nations--something that is clearly in our national security interests--
without having to agree to support ASPA.
  In any event, I take issue with Mr. Hyde's interpretation of sections 
2004, 2006, and 2011, even though they are heavily qualified by the 
Dodd-Warner amendment. Again, one should look to legislative history 
only if the text of the provision is unclear, and in this case the text 
of ASPA is clear and does not support his reading. For example, there 
is nothing in the waiver language concerning the President's executive 
authority or authority as Commander-in-Chief that limits the waiver to 
a subset of this authority. Moreover, ASPA clearly states that the 
waiver applies to ``any action or actions . . .'' not to ``some'' 
actions.
  For Mr. Hyde's interpretation to be correct it would be necessary to 
add language to the provision such as: ``if it would be 
unconstitutional for Congress to restrict the exercise of this 
authority.'' Moreover, ASPA states that it applies to ``any action'' 
taken by the President as Commander-in-Chief or exercising ``the 
executive power'' of the Presidency. If the President has the 
constitutional authority to take an action, this provision permits him 
to do so, notwithstanding any other language in the bill. It is not 
relevant whether Congress could have prohibited such actions.
  Further, no matter what was said between those who negotiated ASPA, 
Mr. Hyde's interpretation of the provision

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was not necessarily in the minds of the majority of Members voting on 
ASPA because it simply was not mentioned during the House or Senate 
debates. These waiver provisions complement section 2015 which is 
highly relevant in interpreting them, as Senator Warner alluded to 
during the Senate debate. Congress decided that it did not want to tie 
the President's hands if he determined that it makes sense for the 
United States to cooperate with any international body, including the 
ICC, in prosecuting foreign nationals accused of genocide, war crimes, 
and crimes against humanity.
  I want to thank Senators Dodd and Warner for their efforts to ensure 
that ASPA does not include overly-burdensome restrictions on the 
President that prevent the U.S. from cooperating with the ICC. I also 
want to thank Senator Dodd's staff for providing valuable advice on 
this issue.

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