Statement Of Sen. Patrick Leahy
On Levin Amendment To Military Tribunal Legislation
September 27, 2006

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.  Of course, the President in his signing statement undermined enactment of the anti-torture law, and now the Administration is seeking still greater license to engage in harsh techniques in connection with the military tribunal legislation before us now.

What is being lost in this debate is any notion of accountability.  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?  Senator Levin’s amendment, which restores the bipartisan legislation passed by the Senate Armed Services Committee, would maintain some accountability for this Administration’s actions and some standards of justice and decency.  The Republican leadership’s legislation which is before us now strips away all accountability and erodes our most basic national values.

If the Administration had answered me when I asked over and over about the Convention Against Torture and about rendition, we could have come to grips with those matters before they degenerated, as they have, into international embarrassment for the United States.  As Secretary Colin Powell wrote recently, “The world is beginning to doubt the moral basis of our fight against terrorism.”  It did not need to come to that.

If FBI Director Mueller had been more forthcoming with me at or after the May 2004 hearing in which I asked him about what the FBI had observed at Guantanamo, we could have gotten to a detention and interrogation policy befitting the U.S. years sooner than we have.

If the Administration would have responded to my many inquiries over the years regarding the rendition of Maher Arar, I would not have had to send yet another demand for information to the Attorney General this week, and we would not have been embarrassed by the Canadian commission report about his being sent by U.S. authorities to Syria where he was tortured.

Mr. Arar is the Canadian citizen who was returning to Canada through New York when he was arrested by American authorities at JFK airport and held for 12 days without access to a Canadian consular official or lawyer.  He was then rendered, not to Canada, but to Syria, without the knowledge or approval of Canadian officials, where he was tortured.  Last week, a Canadian commission inquiry determined that Mr. Arar had no ties to terrorists, he was arrested on bad intelligence, and his forced confessions in Syria reflected torture, not the truth.  Sadly, the Administration is still seeking to avoid accountability by hiding behind legal doctrines.   The Administration continues to thwart every effort to get to the facts, to get to the truth and to be accountable.  I am worried that the legislation before us is one more example of that trend.

Unfortunately, Senator Levin’s amendment, like the Armed Services Committee’s bill, retains the extremely troubling habeas provision.  I will be submitting an amendment to strip that provision.

We are rushing through legislation that would have a devastating effect on our security and on our values, and we need to step back and think about what we are doing.  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 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.  It focused on Star Wars, not terrorism.  Time was of the essence when Osama bin Laden was trapped in Tora Bora. 

After five years of unilateral actions by this Administration that have left us less safe, time is now of the essence to take real steps to keep us safe from terrorism like those in the Real Security Act, S. 3875.  Instead, the President and the Republican Senate leadership call for rubberstamping more flawed White House proposals in the run up to another election.  I hope that this time the United States Senate will act as an independent branch of the government and finally serve as a check on this Administration. 

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, cruel and inhumane treatment of detainees and spying on Americans without warrants and 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 stand up in the light of day. 

It seems that the only clarity this Administration wants is a clear 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 as it now stands 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; of course, despite the President’s calls for clarity, the new provisions are so purposefully ambiguous that we cannot know for sure.  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 doing the same.  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 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. 

We can address any concerns about the War Crimes Act with reasonable amendments, as the Warner-Levin bill did, without gutting the Act in a way that undermines our moral authority and makes us less safe.  Senator Levin’s amendment goes back to the Warner-Levin bill’s formulation, and I urge Senators of both parties to support it.

The proposed legislation would also allow the admission into military commission proceedings of evidence obtained through cruel and inhuman treatment.  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 commission 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 gotten 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 sent by our government 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 Armed Services Committee bill, which the Levin amendment restores, would not allow the use of this tainted evidence.

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.  We should go back to the reasonable definition the Senate Armed Services Committee came up with.  That is what the Levin amendment does.

I hope that we will take the opportunity before us to consider and pass bipartisan legislation that will make us safer and help our fight on terrorism, both by giving us the tools we need and by showing the world the values we cherish and defend, the same values that make us a target.  We should amend the legislation before us to keep the War Crimes Act strong and to require some accountability from the Administration.  The Levin amendment does just that, and I urge all senators to vote for it.  Let us join together on behalf of real security for Americans.

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