"Ensuring Human Rights Through Checks And Balances"
Remarks Of Sen. Patrick Leahy (D-Vt.),
Second Annual Samuel Dash Conference On Human Rights
Georgetown University Law Center
Washington, D.C.
February 13, 2007

I am deeply grateful to this law school for nurturing my appreciation for the rule of law in a just and free society.  I thank Dean Aleinikoff for his invitation to be with you, again, today.  And it is truly a privilege to be speaking at a conference honoring Professor Sam Dash, who did so much in his long and storied legal career to promote civil rights and liberties in this country and human rights around the world.

The last time I was here was two months ago and everyone was in the middle of first semester finals.  I trust all went well.  Whenever the Senate debates a constitutional amendment on school prayer, I remind other Senators if you want to see evidence that prayer in school already is alive and well, just drop by any class in the middle of finals.  I know that was true when I attended here, and I suspect it still is.

Subcommittee On Human Rights And The Law

One of our first actions in the Judiciary Committee in this new Congress was to establish, for the first time, a new subcommittee whose focus is human rights and the law.  Our new Human Rights and the Law Subcommittee is being chaired by another Georgetown Law Center graduate, Senator Dick Durbin of Illinois, and we held our first hearing just last week, on the subject of genocide. 

It is our intention that our new Subcommittee will closely examine some of the vital, often difficult and sometimes controversial legal issues that increasingly have landed on the Judiciary Committee’s doorstep.  Many derive from actions taken by this Administration over the last five years.  Its policies of declaring persons enemy combatants, indefinitely imprisoning them incommunicado in isolated and dehumanizing conditions without charge, and denying them access to legal counsel or to the courts -- until the Administration was forced to do so by the Supreme Court -- make our work particularly timely and increasingly necessary. 

The United States played the key role in the creation of the Universal Declaration of Human Rights.  Our Bill of Rights and our independent judiciary have been models for other nations for more than 200 years.  Justice Jackson’s role at the Nuremberg trials, and our support for war crimes tribunals for perpetrators of genocide and crimes against humanity in the former Yugoslavia, Rwanda and Sierra Leone, are part of a tradition of which we can be proud. 

During the last five years, America’s reputation has suffered tremendously, and along with it, so has our constructive influence in the world.  Abu Ghraib, Guantanamo, and also, I believe, our refusal to join the International Criminal Court – after we played a central role in the negotiations on the Rome Treaty that established it -- have tarnished that tradition.  The secret prisons that the President confirmed last year and this Administration’s role in sending people to other countries where they would be tortured have led to condemnation by our allies, legal challenges and criminal charges.  Just last week, our government declined to join 57 other countries that signed a treaty, already adopted by the U.N. General Assembly, which prohibits governments from holding people in secret detention.  We have condemned countries in the past for detaining people in secret and then covering up that detention, but we now choose not to join much of the rest of the world in condemning this outrageous tactic, which the President admitted last fall is a tactic our government has been using.

Even more inexplicably, our government also declined last week to join 58 other countries who signed a non-binding accord banning the use of child soldiers.  That is an abhorrent practice, which has brought misery to so many children around the world, and I cannot imagine why our government would pass up this opportunity to condemn it in the strongest possible terms.

One of the reasons the image of this country has been so damaged during recent years is because the world believed that we stood for something better.  They hold us to a higher standard, and they want us to live up to our own ideals, as do we all.  When we fall short of that standard, it is not only our reputation that suffers – the cause of justice everywhere also suffers.  And the hope of oppressed and suffering people everywhere dims whenever we dim our beacon of human rights leadership.

In Darfur we see the tragic replay of suffering and death.  Hundreds of thousands of innocent people killed, or raped, tortured and forced to flee the ashes of their homes.  This was the topic of our new Subcommittee’s hearing last week.  

What happened in Rwanda was, I believe, among the most egregious failures of the international community to protect human rights since the Cambodian genocide of the 1970s.  We cannot allow that horror to be repeated.

We will do what we can to seek – at every opportunity – additional humanitarian aid and funding for international peacekeeping troops in Darfur.  We need to ask what more can be done to convince the Sudanese Government to disarm the militias that are responsible for the genocide and to allow the United Nations to deploy additional troops to buttress the African Union force. 

We also need to determine whether our own laws provide adequate authority to prosecute in the United States acts of genocide by non-U.S. nationals that occur outside this country, whether in Darfur or anywhere else. 

Life-Saving Medicines

I am also redoubling my efforts to reexamine our patent laws in the hope that by making thoughtful and practical changes, we can greatly increase access to essential medicines throughout the world.  We can help struggling families in developing nations, while improving U.S. relations with large segments of the world’s population.  The current global health crisis is one of the great callings of our time.  Whether it is the Avian Flu, AIDS, SARS, West Nile Virus, or the approaching menace of multi-drug resistant bacteria, we need to recognize that the health of those halfway around the world now influences our security and affects our lives here in the United States.  I want the work of the Judiciary Committee to be a catalyst to help make life-saving medicines more readily available around the world. 

Iraq

The issue that continues to dominate the national discussion is the failed policy in the aftermath of the invasion of Iraq.  I imagine that you, like I, know Guardsmen and Reservists who have been sent to Iraq – sometimes, several times -- along with tens of thousands of other brave young women and men. 

While Republicans in the Senate for now have prevented a vote and a real debate, I am hopeful that this debate will come soon, and that a majority of the United States Senate will get the chance to vote to voice their disapproval of the President’s proposal to escalate the war by injecting more of our forces into the sectarian civil war that now dominates Baghdad and that country.  President Bush’s father knew better than to seek to occupy Iraq.  General Colin Powell knew better than to leave our forces in harm’s way for years without end.

I would go farther than merely disagree with the President’s policy.  I would act to correct it and to begin bringing our young men and women home from a conflict that even the President now admits is not the fight that he thought he was beginning. 

As part of the Judiciary Committee’s efforts, we held a recent hearing with Congressman Hamilton and former Attorney General Meese on the Iraq Study Group recommendations — bipartisan recommendations that have been largely rejected by the Administration.  Our focus was on the Iraqi police forces, which have been infiltrated and corrupted by partisan militias and death squads.  The police forces have proven to be among the worst failures of the occupation.  The human rights violations ongoing in Iraq today rival if they do not surpass those of the oppressive regime of Saddam Hussein.  These abuses persist, and the violence grows. 

We may not be able to control what others do, but we can control our own actions.  Accordingly, I strongly believe that any American aid must be conditioned on adherence to the Leahy Law.  That law prohibits American aid to military units that engage in human rights violations.  That law needs to be honored and enforced, not ignored.

Oversight And Restoring Checks And Balances

We have begun seeking to restore constitutional values and the rights of ordinary Americans here at home and to repair a broken oversight process, in order to return a measure of accountability to our government.

This Administration has over the last several years brazenly refused to answer the legitimate oversight questions of the public’s duly elected representatives, and this refusal was routinely enabled by a Republican-controlled Congress.  The Administration has acted outside lawful authority to wiretap Americans without warrants, and to create databanks and dossiers on law-abiding Americans without following the law and without first seeking legal authorization.  I have noted that this White House seems to skip Article I regarding congressional authority when it considers the Constitution.  Indeed, they have taken their extreme ideology of a “unitary executive” to great lengths to strip both Congress and our independent federal judiciary of their rightful roles. 

Our constitutional balance must be restored.  Congress has a solemn duty to protect the rights of the American people and to perform meaningful oversight to make sure the laws are faithfully followed.  Real oversight makes government more accountable, more effective in keeping us safe, and more responsive to human rights.

I am immensely proud to be one of the two Senators given the opportunity to represent a state that boasts such a rich tradition of defending those rights.  Vermont was the first colony to abolish slavery, in 1777.  Vermont did not and would not become a state until 1791, the year the Bill of Rights was ratified.  Vermonters have traditionally risen up against abuses and against infringements of the people’s rights, even when doing what was right was not necessarily popular at the time.

For years, this Administration had hidden the “President’s program” of warrantless wiretapping of Americans.  We all support monitoring the communications of suspected terrorists.  It is essential, and it is permitted under existing law.  It is also essential that when that monitoring impinges upon the rights of Americans, it needs to be done lawfully and with adequate checks and balances to prevent abuses.  Initially the Administration stonewalled our inquiries and claimed unilateral power and a monopoly on deciding what needs to be done and how to do it.  As we pressed for answers, their responses turned into a demand for sweeping legal authority without any independent judgment by Congress, or any meaningful answers about what they have been doing. 

This year we are working to restore the balance, and we may be seeing some success.  I held an oversight hearing with the Attorney General in January.  It was then that the Administration reversed itself and agreed to terminate its warrantless wiretapping of Americans.  It was then that the Administration announced that it could in fact conduct the wiretapping of terrorist suspects in accordance with the Foreign Intelligence Surveillance Act and pursuant to court orders.  Then we insisted that Congress be shown the court orders.  The Administration resisted for weeks but has now sent copies to the Congress.  We have a long way to go, but these initial steps show that things have changed, and we are beginning to make progress and restore checks and balances.  What once was a program outside the law is now being conducted pursuant to law, pursuant to court order, and subject to congressional oversight.  Score one for the rule of law, for congressional oversight, and for the difference that an election can make in a free society.

Restoring Basic American Values And Human Rights

Another core concern that strikes close to home are the excesses of the Military Commissions Act, passed by the Republican Congress in the run-up to the last election.  It was wrong to suspend the Great Writ of Habeas Corpus -- a keystone of American liberty -- in order to avoid judicial review that prevents government abuse.  That law needlessly undercut our freedoms and values, and, as I noted at the time, it allowed the terrorists to achieve something they could never win on the battlefield: an action from fear rather than strength to undercut the Constitution.  It was a squandered opportunity to write a good law to set enforceable guidelines for fighting and winning the war on terror without sacrificing American values and American leadership on human rights.  

Justice Scalia wrote in the Hamdi case:  “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”  But the bill written by the White House and passed by the last Congress is designed to ensure that the Bush-Cheney Administration is never again embarrassed by a United States Supreme Court decision reviewing its unlawful abuses of power.  I am committed to restoring basic American values to the way we combat terrorism and to developing a more effective strategy.  Working with Senator Specter and others, I hope that we will succeed. 

As a result of that sweeping, ill-conceived law, we have now eliminated basic legal and human rights for 12 million lawful permanent residents who live and work among us, to say nothing of the millions of other legal immigrants and visitors whom we welcome to our shores each year.  This decimation of basic rights for legal immigrants and visitors follows on our government’s continuing mistreatment and deportation of too many of the people who come to this country seeking asylum from persecution abroad, as the bipartisan United States Commission on International Religious Freedom found just last week. 

If you saw the movie “Babel” and were moved by the toll taken in individual lives by the callous ways that government can treat people, think about the possible sequel, with story lines of unlimited detention of innocent people, and our own government sending people to Syria and to secret prisons to be tortured.  That is not the America we have known or what we want America to be.  

Sam Dash is known for his role in helping to rescue our own government from abuses of power.  But he also devoted much time and effort to defending human rights in far-off places like Chile, South Africa, the former Soviet Union, and Northern Ireland.  Someone aptly called Sam Dash a “force for good.”  His patriotism drove him to demand the highest standards from our legal system, and from those who benefit from it, and it also drove him to empathize with those far away from our shores who yearn for their own human rights.  Many who benefited from his labors will never know his name or what he did to help protect their rights and to defend their humanity. 

As our own difficult experience of the last five years plainly shows, even though we have the blessings of a remarkable Constitution, it falls to each generation of Americans to keep its promise alive.

Looking back now, we see so clearly that the internment of Japanese Americans during World War II was a blot on our constitutional stewardship.  And it didn’t make us safer.  Our generation now faces its own tests.

The matters I have raised will not be resolved in an hour or a day.  They will be resisted by powerful forces.  They will take sustained effort over weeks and months and maybe years.  I hope that you will think about ways in which you can help in this struggle.  Isn’t this why we came here to law school?  Isn’t this why we are here?  Shouldn’t each of us, in our own ways, strive, like Sam Dash, to be a force for good?

 

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