(Prepared Remarks)

Senator Patrick Leahy, Chairman, Senate Judiciary Committee
THE CONTINUING DEBATE
ON THE USE OF MILITARY COMMISSIONS
Senate Floor
Fri., Dec. 14, 2001

Mr. LEAHY: Mr. President, over the past few weeks, the Judiciary Committee has examined the Administration’s proposal to use military commissions to try suspected terrorists. Our work on the issue has been very productive.

We have used the constitutional oversight power of the Senate to hold a series of hearings and open a national dialogue on the merits of, legal authority for, and appropriate limits on the use of military commissions. We have taken a unilateral edict by the Administration and turned it into a lesson in democracy.

We have provided a forum for thousands of patriotic Americans to speak their minds on the use of military commissions, and as Americans are liable to do, they have expressed a variety of different viewpoints on the subject. Some have heartily endorsed the use of military commissions. Others, like myself, have concluded that the use of military commissions may be appropriate in some circumstances, provided that they are duly authorized and that there are reasonable limits and proper procedural safeguards for their use. Still others have expressed their strong view that we should rely on our tried and tested court system, which is the envy of the world, and not switch to military commissions in the heat of the moment. Indeed, 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 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 Qaeda 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 (1) the Administration does not intend to use military commissions to try people arrested in the United States; (2) these tribunals will be limited to "foreign enemy war criminals" for "offenses against the international laws of war"; (3) the military commissions will follow the rules of procedural fairness used for trying U.S. military personnel; and (4) 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^th 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 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. I would like to submit for the record at the end of my statement an outline of those safeguards and the sources for them.

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, printed in the RECORD following my remarks.

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