Federal Courts Capable Of Hearing Terrorism Trials
[WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.)
spoke on the Senate floor Thursday in opposition to an amendment to the
Commerce-Justice-Science appropriations bill that would prohibit the use
of funds to prosecute in federal courts the detainees held in connection
to the terrorist attacks of September 11. Leahy has long opposed
restricting the Justice Department’s ability to prosecute terrorists and
detainees in federal courts.]
Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Graham Amendment
November 5, 2009
As Prepared
The amendment sponsored by Senator Graham, Senator McCain, Senator
Lieberman and Senator Webb plays partisan politics with our national
security. This amendment would prohibit the prosecution of any
individual suspected of involvement with the September 11 attacks on the
United States from being tried in our Article III courts.
The real intent of this amendment is clear, to ensure that the detainees
being held at Guantanamo Bay, some for years without charge, can only be
tried by military commissions. As a former prosecutor, I find it deeply
troubling that the Senate would be asked to prohibit the administration
from trying even dangerous terrorists in our Federal courts. These
Senators should not use an amendment that politicizes decisions about
significant prosecutions as a backdoor to require the use of military
commissions. The administration has worked hard to revise the military
commissions to make sure they meet the constitutional standards.
However, their use has been plagued with problems and repeatedly
overturned by the Supreme Court. In contrast, our Federal courts
have a long and distinguished history of successfully prosecuting even
the most atrocious violent acts, and they are respected throughout the
world.
The administration strongly opposes this amendment. In a letter to
the Senate leadership, the Secretary of Defense and the Attorney General
of the United States warn that this amendment would “set a dangerous
precedent” by directing the Executive Branch’s prosecutorial
determination. They also point out that this amendment would
prohibit them from being able to “use every lawful instrument of
national power… to ensure that terrorists are brought to justice and can
no longer threaten American lives.” Two of the most senior
administration officials, who are directly responsible for the
disposition of these detainees, are telling us not to tie their hands in
the fight against terrorism. We should listen to them.
An outpouring of opposition against this amendment has been voiced over
the past few days by numerous human rights groups, including Amnesty
International, Human Rights First, the National Institute of Military
Justice, the Constitution Project and others. We have also seen a
strong public declaration supporting trying terrorism offenses in
Federal court that was signed by a bipartisan group of prominent former
members of Congress, high-ranking military officials and judges.
The Judiciary Committee has held several hearings on the issue of how to
best handle detainees, and experts and judges from across the political
spectrum have agreed that our courts and our criminal justice system can
handle this challenge, and indeed has handled it many times already.
Republican luminaries like General Colin Powell have agreed with this
idea. In fact, since January of this year alone, over 30 terrorism
suspects have been successfully prosecuted or sentenced in federal
courts, including individuals directly implicated by this amendment,
such as Zacarias Moussaoui. If this amendment were law, Moussaoui,
the so called “20th hijacker” who was directly involved in
the planning of the September 11, would not have been convicted and
sentenced to life in prison. This amendment takes away one of the
greatest tools we have to protect our national security -- the ability
to prosecute suspects in Federal courts. Instead, as the Justice
Department has said in its opposition to it, the Graham amendment would
make it more likely that terrorists will escape justice.
I believe strongly, as all Americans do, that we must take every step we
can to prevent terrorism, and we must ensure severe punishments for
those who do us harm. As a former prosecutor, I have made certain
that perpetrators of violent crimes receive serious punishment. I
also believe strongly that we can ensure our safety and security, and
bring terrorists to justice, in ways that are consistent with our laws
and values.
The administration has said that where possible they will try
individuals in Federal courts. When we unnecessarily preempt that
option, we are saying that we do not trust the legal system on which we
have for so long. All that does is give more ammunition to our
enemies and further hurt our standing around the world which has already
suffered so much from the stain of Guantanamo Bay. Worse still, it
sends the message to other countries that they do not have to use
traditional legal regimes with established protections for defendants to
prosecute American soldiers or civilians.
Just as partisan Republicans were wrong to try to hold up the
confirmation of Attorney General Holder to extort a pledge from him that
he would not exercise independent prosecutorial judgment, it is also
wrong to force an amendment politicizing prosecutions into the
Commerce-Justice-Science appropriations bill. I opposed the effort
by some Republican Senators who wanted the Nation's chief prosecutor to
agree in advance that he would turn a blind eye to possible lawbreaking
before investigating whether it occurred. Republican Senators
asked for such a pledge, a commitment that no prosecutor should give.
To his credit, Eric Holder did not.
Passing a far-reaching amendment that takes away a powerful tool from
the Justice Department in bringing terrorists to justice and usurps the
Attorney General’s constitutional responsibilities is not the path
forward. The administration should decide who to prosecute and
where they should be prosecuted. This amendment denies us the
benefit of using not only our Federal courts, with their successful
track record convicting terrorists, but also from using our Federal
laws, which are arguably more expansive and better suited for use in
terrorism cases than the narrower set of charges that can be brought in
a military commission. We should not tie the hands of our law
enforcement in their efforts to secure our national security. Any former
prosecutor, any lawyer and any citizen should know that it is not the
decision of or an appropriate role for the United States Senate.
It is time to act on our principles and our constitutional system.
Those who we believe to be guilty of heinous crimes should be tried and
punished severely. Where the administration decides to try them in
Federal courts, our courts and our prisons are more than up to the task.
I agree with the Justice Department that this amendment “would ensure
that the only individuals in the world who could not be prosecuted under
the criminal terrorist offenses Congress has enacted would be those who
are responsible for the most devastating terrorist acts in U.S.
history.” Let us put aside heated and distorted rhetoric and support the
President in his efforts to truly make our country safe and strong and a
republic worthy of the history and values that have always made America
great.
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