The court was divided 4-4.
September 28, 2006
It is from strength that America should defend our values and our Constitution. It takes commitment to those values to demand accountability from the Government. In standing up for American values and security, I will vote against this bill.
Senator Smith spoke stirringly earlier today of the dangers of this bill’s most dangerous provision, the elimination of the independent judicial check on Government overreaching and lawlessness. He quoted from great defenders of liberty. It was Justice Robert H. Jackson who said in his role as Chief Counsel for the Allied Powers responsible for trying German war criminals after World War II: “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason.” He closed the Nuremberg trials about which Senator Dodd spoke earlier by saying: “Of one thing we may be sure. The future will never have to ask, with misgiving, ‘What could the Nazis have said in their favor?’ History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man. But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength.” He was right and his wisdom was echoed this week at our Judiciary Committee hearing when Admiral Hutson and Lieutenant Commander Swift testified that fairness and lawfulness is our greatest strength. Regrettably, this legislation does not live up to that standard. It is a giant step away from fairness and a further leap away from any accountability for actions by the United States Government.
This Administration, for all its talk of strength, has made us less safe, and its proposal before us today is one that smacks of weakness and fear. Its legislative demands reflect a cowering country that is succumbing to the threat of terrorism. I believe that we are better than that. I believe that we are stronger than that. I believe that we are fairer than that. I believe that America should be a leader in the fight for human rights and the rule of law.
We have taken our eye off the ball in the fight against the terrorists. That is essentially what all of our intelligence agencies concluded in the National Intelligence Estimate that the Administration has had for six months, but that the rest of us just learned about this weekend. Our retooled and reorganized intelligence agencies, with leadership hand-picked by this Administration, have concluded, contrary to the campaign rhetoric of the President and Vice President, that the Iraq War has become a “cause celebre” that has inspired a new generation of terrorists. Surely, the shameful mistreatment of detainees at Guantanamo, at Abu Ghraib, at secret CIA prisons and which were facilitated by torturers in countries where the U.S. Government shipped people, have become other “causes celebre” and recruiting tools for our enemies. Surely, the continued occupation of Iraq, when close to three-fourths of Iraqis want U.S. forces to depart, is another circumstance being exploited by our enemies to mischaracterize America.
Passing laws that remove the few checks against mistreatment of prisoners will not help us win the battle for the hearts and minds of the generation of young people around the world being recruited by Osama bin Laden and al Qaeda. Authorizing indefinite detention of anybody the Government designates, without any proceeding and without any recourse, is what our worst critics claim the United States would do, not what American values, traditions, and our rule of law would have us do. This is not just a bad bill, this is a dangerous bill.
I have been asking Secretary Rumsfeld’s question for the last several weeks: whether our actions are eliminating more of our enemies than are being created. Any reasonable doubt that anyone might have had on that score was eliminated by last April’s National Intelligence Estimate. Our intelligence agencies agree and confirm what many of us have been saying and what the American people know intuitively: The global jihadist movement is spreading and adapting, it is “increasing in both number and geographic dispersion.” “If this trend continues,” that is, if we do not wise up and change course and adopt a winning new strategy, “threats to U.S. interests at home and abroad will become more diverse, leading to increasing attacks worldwide.” Attacks have been increasing worldwide over the last five year of these failing policies and are, according to the judgment of our own, newly-reconstituted intelligence agencies, likely to increase further in the days and months and years ahead. It goes on to note ominously that “[n]ew jihadist networks and cells, with anti-American agendas, are increasingly likely to emerge.” And further, that the “operational threat will grow” particularly abroad, “but also in the Homeland.” This is chilling. The Bush-Cheney Administration has not only failed for five years to bring Osama bin Laden to justice, having yanked our special forces that had him on the run out of Tora Bora and diverting them to Iraq, but, in answer to Secretary Rumsfeld, has witnessed the spread of additional enemies with anti-American agendas.
And what do our intelligence agencies suggest is the way out of this dangerous quagmire? The National Intelligence Estimate suggests we have to “go well beyond operations to capture or kill terrorist leaders” and we must foster democratic reforms. When America can be seen abandoning its American democratic values, its checks and balances, its great legal traditions and becoming more autocratic and less accountable, how is that going to help foster democratic reforms elsewhere? “Do as I say and not as I do” is not a motto that has ever successfully inspired trust or credibility.
This Administration has yet to come clean to the Congress or the American people in connection with the secret legal justifications it has generated and secret practices it has employed in detaining and interrogating hundreds, if not thousands, of people in the war on terror. Even they cannot dismiss the practices at Guantanamo as the actions of a few “bad apples.” With Senate adoption of the anti-torture amendment last year and the recent adoption of the Army Field Manual, I had hoped that five years of Administration resistance to the rule of law and to the U.S. military abiding by its Geneva obligations might be drawing to a close. Despite the resistance of the Vice President and the Administration, the new Army Field Manual appears to outlaw several of what the Administration euphemistically calls “aggressive” tactics and that much of the world regards as torture and cruel and degrading treatment. In rejecting the Kennedy amendment today, the Senate has turned away from the wise counsel and judgment of military professionals. Of course, the President in his signing statement already undermined enactment of the anti-torture law. The Administration is now obtaining license to engage in additional harsh techniques that much of the world will see as abusive, as cruel and degrading and even as torture.
What is being lost in this debate is any notion of accountability and the guiding principles of American values and law. Where are the facts of what has been done in the name of the United States? Where are the legal justifications and technicalities the Administration’s lawyers have been seeking to exploit for five years? The Republican leadership’s legislation strips away all accountability and erodes our most basic national values without so much as an accounting of these facts and legal arguments. Senator Rockefeller’s amendment to incorporate some accountability in the process through oversight of the CIA interrogation program was unfortunately rejected by the Republican leadership in the Senate. Secrecy for all time is to be the Republican rule of the day. Congressional oversight is no more. Checks and balances are no more. The fundamental check that had been provided by the Supreme Court is effectively to be excised from the constitutional landscape. This is wrong. This should be unconstitutional. This is certainly not the action of any Senate in which I have served or one that is worthy of the United States of America.
We are rushing through legislation that would have a devastating effect on our security and on our values. I implore Senators to step back from the brink and consider the truly devastating consequences of this bill.
The President recently said that “time is of the essence” to pass legislation authorizing military commissions. Time was of the essence when this Administration took control in January 2001 and did not act on the dire warnings of terrorist action. Time was of the essence in August and early September 2001 when the 9/11 attacks could still have been prevented. This Administration ignored warnings of a coming attack and even proposed cutting the anti-terror budget on September 10, the day before the worst foreign terrorist attack on U.S. soil in our history. This Administration was focused on Star Wars, not terrorism. Time was of the essence when Osama bin Laden was trapped in Tora Bora. But this Administration was more interested in going after Sadaam Hussein, who the President recently admitted had “nothing” to do with 9/11.
After five years of this Administration’s unilateral actions that have left us less safe, time is now of the essence to take real steps to keep us safe from terrorism. Real steps like those included in the Real Security Act, S. 3875. We should be focusing on getting the terrorists and securing the nuclear material that this Administration has allowed for the last five years to be unaccounted for around the world. We should be strengthening our special forces as Senator Kerry has advised and trying to win the peace in Afghanistan, where the Taliban has regrouped and is increasing in strength.
Instead, the President and the Republican Senate leadership call for rubberstamping more flawed White House proposals in the run up to another election. I had hoped that this time, for the first time, the United States Senate would act as an independent branch of the government and finally serve as a check on this Administration. After this debate and the rejection of all amendments intended to improve this flagrantly unconstitutional measure, I see that day has long passed. I will continue to speak out, but I mourn for the country and for the American values and principles on which I was raised and which I took a solemn oath to uphold.
Going forward, the bill departs even more radically from our most fundamental values. And provisions that were profoundly troubling a week ago when the Armed Services Committee marked up the bill have gotten much worse in the course of closed-door revisions over the past week. For example, the bill has been amended to eliminate habeas corpus review even for persons inside the United States, and even for persons who have not been determined to be enemy combatants. It has moved from detention of those who are captured having taken up arms against the United States on a battlefield to millions of law-abiding Americans that the Government might suspect of sympathies for Muslim causes and who knows what else—without any avenue for effective review. This is the Government whose incompetence was demonstrated in historic dimensions in the lack of preparation and response to Hurricane Katrina. This is the Government that had Senator Kennedy and Congressman Lewis on terrorist watch lists and could not get them off. This is a Government that repeatedly failed to protect confidential information about our armed forces and veterans. And this is a Government that is loathe to admit mistakes or make course corrections, instead regarding all of its representatives from Donald Rumsfeld to Michael Brown as doing a “heckuva job.”
The proponents of this bill talk about sending messages. What message does it send to the millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes? Its message is that our Government may at any minute pick them up and detain them indefinitely without charge, and without any access to the courts or even to military tribunals, unless and until the Government determines that they are not enemy combatants – a term that the bill now defines in a tortured and unprecedentedly broad manner. And that power and any errors cannot be reviewed or corrected by a court. What message does that send about abuse of power? What message does that send to the world about America’s freedoms?
Numerous press accounts have quoted Administration officials who believe that a significant percentage of those detained at Guantanamo have no connection to terrorism. In other words, the Bush-Cheney Administration has been holding for several years, and intends to hold indefinitely without trial or any recourse to justice, a substantial number of innocent people who were turned in by anonymous bounty hunters or picked up by mistake in the fog of war or as a result of a tribal or personal vendetta. The most important purpose of habeas corpus is to correct errors like that – to protect the innocent. It is precisely to prevent such abuses that the Constitution prohibits the suspension of the writ of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it.” But court review has now embarrassed the Bush Administration, as the United States Supreme Court has three times rejected its lawyers’ schemes. And, so how does the Administration respond? It insists that there be no more judicial check on its actions and errors. When the Senate accedes to that demand, it abandons American principles and Americans. I will not be a party to that retreat from constitutional values.
Senator Smith, speaking this morning about the habeas provisions of this bill, quoted Thomas Jefferson, who said: “The habeas corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.” Jefferson said on another occasion, “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” With this bill, the United States Senate reverses that profound judgment of history, chooses against liberty, and succumbs to fear.
When former Secretary of State Colin Powell wrote last week of his concerns with the Administration’s bill, he wrote about doubts concerning our “moral authority in the war against terrorism.” This General, former head of the Joint Chiefs of Staff and former Secretary of State, was right. Now we have heard from a number of current and former diplomats, military lawyers, federal judges, law professors and law school deans, the American Bar Association, and even the first President Bush’s Solicitor General, Kenneth Starr, that they have grave concerns with the habeas corpus stripping provisions of this bill.
I agree with Mr. Starr that we should not suspend – and we should certainly not eliminate – the Great Writ. I also agree with more than 300 law professors, who described an earlier, less extreme version of the habeas provisions of this bill as “unwise and contrary to the most fundamental precepts of American constitutional traditions.” And I agree with more than 30 former U.S. Ambassadors and other senior diplomats, who say that eliminating habeas corpus for aliens detained by the United States will harm our interests abroad, and put our own military, diplomatic, and other personnel stationed abroad at risk. We cannot spread a message of freedom abroad if our message to those who come to America is that they may be detained indefinitely without any recourse to justice.
In the wake of the 9/11 attacks, and in the face of the continuing terrorist threat, now is not the time for the United States to abandon its principles. Admiral Hutson was right to point out that when we do, there would be little to distinguish America from a “banana republic” or the repressive regimes against which we are trying to rally the world and the human spirit. Now is not the time to abandon American values, to shiver and quake, to rely on secrecy and torture. Those are ways of repression and oppression, not the American way.
We need to pursue the war on terror with strength and intelligence, but also to do so consistent with American values. The President says he wants clarity as to the meaning of the Geneva Conventions and the War Crimes Act. Of course, he did not want clarity when his Administration was using its twisted interpretation of the law to authorize torture and cruel and inhumane treatment of detainees. He did not want clarity when spying on Americans without warrants. And he certainly did not want clarity while keeping those rationales and programs secret from Congress. The Administration does not seem to want clarity when it refuses even to tell Congress what its understanding of the law is following the withdrawal of a memo that said the President could authorize and immunize torture. That memo was withdrawn because it could not withstand the light of day.
It seems that the only clarity this Administration wants is a green light from Congress to do whatever it wants. That is not clarity; it is immunity. That is what the current legislation would give to the President on interrogation techniques and on military commissions. Justice O’Connor reminded the nation before her retirement that even war is not a “blank check” when it comes to the rights of Americans. The Senate should not be a rubberstamp for policies that undercut American values and make Americans around the world less safe.
In reality, we already have clarity. Senior military officers tell us they know what the Geneva Conventions require, and the military trains its personnel according to these standards. We have never had trouble urging other countries around the world to accept and enforce the provisions of the Geneva Conventions. There was enough clarity for that. What the Administration appears to want, instead, is to use new legislative language to create loopholes and to narrow our obligations not to engage in cruel, degrading, and inhuman treatment.
In fact, the new legislation muddies the waters. It saddles the War Crimes Act with a definition of cruel or inhuman treatment so oblique that it appears to permit all manner of cruel and extreme interrogation techniques. Senator McCain said this weekend that some techniques like waterboarding and induced hypothermia would be banned by the proposed law. But Senator Frist and the White House disavowed his statements, saying that they preferred not to say what techniques would or would not be allowed. That is hardly clarity; it is deliberate confusion.
Into that breach, this legislation throws the Administration’s solution to all problems: more Presidential power. It allows the Administration to promulgate regulations about what conduct would and would not comport with the Geneva Conventions, though it does not require the President to specify which particular techniques can and cannot be used. This is a formula for still fewer checks and balances and for more abuse, secrecy, and power-grabbing. It is a formula for immunity for past and future abuses by the Executive.
I worked hard, along with many others of both parties, to pass the current version of the War Crimes Act. I think the current law is a good law, and the concerns that have been raised about it could best be addressed with minor adjustments, rather than with sweeping changes.
In 1996, working with the Department of Defense, Congress passed the War Crimes Act to provide criminal penalties for certain war crimes committed by and against Americans. The next year, again with the Pentagon’s support, Congress extended the War Crimes Act to violations of the baseline humanitarian protections afforded by Common Article 3 of the Geneva Conventions. Both measures were supported by a broad bipartisan consensus, and I was proud to sponsor the 1997 amendments.
The legislation was uncontroversial for a good reason. As I explained at the time, the purpose and effect of the War Crimes Act as amended was to provide for the implementation of America’s commitment to the basic international standards we subscribed to when we ratified the Geneva Conventions in 1955. Those standards are truly universal: They condemn war criminals whoever and wherever they are.
That is a critically important aspect of the Geneva Conventions and our own War Crimes Act. When we are dealing with fundamental norms that define the commitments of the civilized world, we cannot have one rule for us and one for them, however we define “us” and “them.” As Justice Jackson said at the Nuremberg tribunals, “We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
In that regard, I am disturbed that the legislation before us narrows the scope of the War Crimes Act to exclude certain violations of the Geneva Conventions and, perhaps more disturbingly, to retroactively immunize past violations. Neither the Congress nor the Department of Defense had any problem with the War Crimes Act when we were focused on using it to prosecute foreign perpetrators of war crimes. I am concerned that this is yet another example of this Administration overreaching, disregarding the law and our international obligations, and seeking to immunize others to break the law. It also could well prevent us from prosecuting rogues who we all agree were out of line, like the soldiers who mistreated prisoners at Abu Ghraib.
The President said on May 5, 2004 about prisoner mistreatment at Abu Ghraib: “I view those practices as abhorrent.” He continued: “But in a democracy, as well, those mistakes will be investigated, and people will be brought to justice.” The Republican leader of the Senate said on the same day: “I rise to express my shock and condemnation of these despicable acts. The persons who carried them must face justice.”
Many of the despicable tactics used in Abu Ghraib – the use of dogs, forced nudity, humiliation of various kinds – do not appear to be covered by the narrow definitions this legislation would graft into the War Crimes Act. Despite the President’s calls for clarity, the new provisions are so purposefully ambiguous that we cannot know for sure whether they are covered. If the Abu Ghraib abuses had come to light after the perpetrators left the military, they might not have been able to be brought to justice under the Administration’s formulation.
The President and the Congress should not be in the business of immunizing people who have broken the law, making us less safe, turning world opinion against us, and undercutting our treaty obligations in ways that encourage others to ignore the protections those treaties provide to Americans. We should be very careful about any changes we make.
If we lower our standards of domestic law to allow outrageous conduct, we can do nothing to stop other countries from acting the same way. This change in our law does not prevent other countries from prosecuting our troops and personnel for violations of the Geneva Convention if they choose; it only changes our domestic law. But it could give other countries a green light to change their own law to allow them to treat our personnel in cruel and inhuman ways.
Let me be clear. There is no problem facing us about overzealous use of the War Crimes Act by prosecutors. In fact, as far as I can tell, the Ashcroft Justice Department and the Gonzales Justice Department have yet to file a single charge against anyone for a violation of the War Crimes Act. Not only have they never charged American personnel under the Act, they have never used it to charge terrorists either.
This bill does not clarify the War Crimes Act. It authorizes and immunizes abhorrent conduct that violates our basic values. Perhaps that is why more than 40 religious organizations and human rights groups wrote to urge the Senate to take more time to consider the effects of this legislation on our safety, security, and commitment to the rule of law, and to vote against it if the serious problems in the bill are not corrected.
The proposed legislation would also allow the admission of evidence obtained through cruel and inhuman treatment into military commission proceedings. This provision would once again allow this Administration to avoid all accountability for its misguided policies which have contributed to the rise of a new generation of terrorists who threaten us. Not only would the military commissions legislation before us immunize those who violated international law and stomped on basic American values, but it would allow them then to use the evidence obtained in violation of basic principles of fairness and justice.
Allowing in this evidence would violate our basic standards of fairness without increasing our security. Maher Arar, the Canadian citizen arrested by our government on bad intelligence and sent to Syria to be tortured, confessed to attending terrorist training camps. A Canadian commission investigating the case found that his confessions had no basis in fact. They merely reflected that he was being tortured, and he told his torturers what they wanted to hear. It is only one of many such documented cases of bad information resulting from torture. We gain nothing from allowing such information.
The military commissions legislation departs in other unfortunate ways from the Warner-Levin bill. Early this week, apparently at the White House’s request, Republican drafters added a breathtakingly broad definition of “unlawful enemy combatant” which includes people – citizens and non-citizens alike – who have “purposefully and materially supported hostilities” against the United States or its allies. It also includes people determined to be unlawful enemy combatants by any “competent tribunal” established by the President or the Secretary of Defense. So the Government can select any person, including a United States citizen, whom it suspects of supporting hostilities – whatever that means – and begin denying that person the rights and processes guaranteed in our country. The implications are chilling.
I am sorry that the Republican leadership squandered the chance to consider and pass bipartisan legislation that will make us safer and help our fight against terrorism. There was an opportunity today for the Senate to provide the tools we need to fight terrorism while showing the world the values we cherish and defend, the same values that make us a target. I will not participate in a legislative retreat out of weakness and fear that undercuts everything this nation stands for and that makes us more vulnerable and less secure. Consistent with my oath of office, my conscience, my commitment to the people of Vermont and the nation, I cannot and will not support this bill.