Statement Of Sen. Patrick Leahy,
Ranking Member, Judiciary Committee,
Hearing On “Hamdan v.
Rumsfeld: Establishing A Constitutional Process”
July 11, 2006
Mr. Chairman, today we pick up
where the Judiciary Committee started almost five years ago in
November and December 2001, when we urged the President to work
with us to construct a just system of special military
commissions. You and I introduced bills with procedures that
would have complied with our obligations under law and provided
the kind of “full and fair trials” the President has said that
he wants to provide.
This hearing today follows the
United States Supreme Court’s repudiation of the President’s
military commissions. The Supreme Court determined that the
Bush-Cheney Administration’s system for prosecuting detainees at
Guantanamo is “illegal.” It is a decision that
has given our system of constitutional checks and balances a
tonic that was sorely needed. The Supreme Court is right in
holding that the President “is bound to comply with the Rule of
Law.” One of our core American values is that no one is above
the law. I commend the Supreme Court for acting as a
much-needed check on this Administration’s unilateral policies
that have stretched beyond the President’s lawful authority.
This decision provides yet another
example of this Administration’s arrogance and incompetence in
the war on terror. When the President announced the creation of
these commissions, Alberto Gonzales, then White House Counsel,
touted them as a means to “dispense justice swiftly, close to
where our forces may be fighting.” But the results have proved
otherwise. In the last five years there have been no trials and
no convictions of any of the detainees and no one has been
brought to justice through these commissions. Instead, precious
time, effort and resources have been wasted.
In our hearings in 2001we heard
from the Attorney General as well as from two Assistant
Attorneys General, the General Counsel to the Department of
Defense and a number of knowledgeable witnesses. We suggested
that at this hearing the Bush-Cheney Administration be
represented at the highest levels, by the current Attorney
General, the Secretary of Defense, and the Navy Judge Advocate
General.
Unfortunately, we have been sent a
deputy counsel and an acting assistant attorney general and no
one from the Judge Advocate General’s Corps. That is not the
fault of the witnesses, though it is an unmistakable message
about this Administration’s continuing unwillingness to work
with us and listen to those most knowledgeable in these matters
from the ranks of experienced and dedicated military lawyers and
those from the State Department, as well. Had this
Administration done so from the outset, we would not be in the
circumstance that we find ourselves in today.
When the Bush-Cheney
Administration rejected our advice, refused to work with
Congress and chose to go it alone in the development of military
commissions, they made a mistake of historic and constitutional
proportions. I hope that the Administration will begin today’s
hearings by admitting their mistakes and acknowledging the
limits on presidential authority. As Justice Kennedy emphasized
in his opinion: “Subject to constitutional limitations,
Congress has the power and responsibility to determine the
necessity for military courts, and to provide the jurisdiction
and procedures applicable to them.”
The Supreme Court’s decision is a
triumph for our constitutional system of checks and balances.
It stands for a simple proposition: When Congress passes a law
the President is bound to follow it. Congress passed the
Uniform Code of Military Justice. Our country adopted and is
bound to abide by the Geneva Conventions, regardless of whether
the Attorney General still considers them to be “quaint.” This
President decided not to follow the law. In
America, no one, not even the President, is above the law.
The Supreme Court’s opinion is not
surprising. What is surprising is that three Justices who claim
the mantle of conservatism were so deferential to the President
that they would not stand up for the Rule of Law and reinforce
the protections of our fundamental freedoms made possible by the
Constitution’s separation of powers. Instead, they dissented.
In the Fall of 2001, in the wake
of September 11, a Democratically led Senate worked on a
bipartisan basis to give the Administration the tools it needed
to fight the war on terror. Within days of September 11, we
passed an Authorization for Use of Military Force in order to
provide authority for the military action against Osama bin
Laden for those horrific attacks and against those harboring him
in Afghanistan. We worked with the President to
pass the USA PATRIOT Act, but we included sunset provisions in
order to be able to revisit those powers in a timely fashion.
I urged the Administration to work
with us on establishing military commissions to ensure their
legitimacy, their efficiency, and their effectiveness. The
President decided to go it alone. Instead of acting in unity
and pursuant to congressional authority, the Administration
decided to rely on what it called “an extension of the
President’s power as Commander-in-Chief.”
Instead of working with us, the
President established a system so flawed that upon reviewing it,
the United States Supreme Court concluded that it
violated not only “the American common law of war,” but also the
rest of the Uniform Code of Military Justice and “the rules and
precepts of the law of nations.”
It is telling that within a week
of the 230th anniversary of our great Declaration of
Independence from tyranny, the Supreme Court found it necessary
to admonish this Administration with James Madison’s warning:
“The accumulation of all powers legislative, executive and
judiciary in the same hands . . . may justly be pronounced the
very definition of tyranny.” In America, no one,
not even the President, is above the law.
I am a former prosecutor. I find
it hard to fathom that this Administration is so incompetent
that it needs kangaroo-court procedures to convince a tribunal
of United States military officers that the
“worst-of-the-worst” imprisoned at Guantanamo Bay should be held
accountable. Military commissions should not be set up as a
sham. They should be consistent with the high-standard of
American military justice that has worked for decades. If they
are to be United States military commissions, they should
dispense just punishment fairly, not just be an easier way to
punish.
For five years, the Bush-Cheney
Administration has violated fundamental American values, damaged
our international reputation, and delayed and weakened
prosecution of the war on terror -- not because of any coherent
strategic view that it had, but because of its stubborn
unilateralism and dangerous theory of unfettered Executive power
augmented by self-serving legal reasoning.
Guantanamo Bay has been such a debacle that even the President
now says it should be shut down. But the damage keeps
accumulating under this President. Along with Abu Ghraib and
the alleged criminal misconduct against civilians in Iraq, the
detention of hundreds held at Guantanamo without a single trial
or conviction through these now-illegal commissions have
undermined our standing in the world and sullied the moral high
ground from which we look to lead the world toward democracy,
freedom, human rights and human dignity.
I said to the Attorney General in
2001, and I say again now: America works best
when all parts of our Government work together. By acting
unilaterally, and in violation of laws passed by Congress, this
Administration has acted as if it was above the law. The
President has important responsibilities and tremendous power,
but he is part of a constitutional system and must be subject to
the Rule of Law.
Too often the rhetoric surrounding
this debate is couched as one about conflicting values of
national security versus civil liberties. That is a political
distraction that undermines our security and our values. That
rhetoric ignores the reality that by getting the process right
we will have greater security. The point of having a just
system is not to be “soft” on terrorism – rather, it is to
ensure the process actually gets the right people. We are not
safer as a Nation by imprisoning innocent people while the truly
dangerous remain free.
Some still will not admit this
Administration’s errors. They argue as if the
United States should measure itself against the brutality of the
terrorists. Our standards have always been higher than that. I
disagree with their argument when it comes to the Rule of Law.
I disagree when it comes to engaging in torture. I disagree
when it comes to honoring our legal and international
obligations. America’s ideals are sullied whenever we resort to
bumper-sticker slogans about giving special privileges to
terrorists. No one is urging special privileges. The President
says he is for fairness and justice. So am I. But I would like
to see a system that can determine guilt and punish the guilty.
I am for a system that works, and a system that honors the
American values that have been part of our strength as a good
and great nation.
Military justice is swift and
effective. Courts-martial have been used to bring some members
of our own Armed Forces, who violated the law, to justice.
Others are being investigated. Meanwhile, not one of the
prisoners at Guantanamo Bay, who the President has
called the worst-of-the-worst, has been brought to justice.
Iraq may well complete its trial of Saddam Hussein before a
single Guantanamo detainee is tried. The system the
Administration created was fatally flawed, and it has created
perverse results.
If the President decides not to
proceed promptly by courts-martial against the detainees, I
remain willing to work to develop bipartisan legislation
creating military commissions that will comply with our laws. I
will do so despite the past five years in which the
Administration has shown no interest in working with us. If we
are to do so we need to have our questions answered. We need to
know why we are being asked to deviate from rules for
courts-martial. And we also need to see a realization by this
Administration that it is Congress that writes our laws, and
that no officeholder, branch or agency of our government is
above the law.
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