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Military

28 November 2001

Text: Leahy Opens Senate Hearings on Bush Anti-Terrorism Moves

(Warns executive branch is bypassing Congress and judiciary) (1860)
Senator Patrick Leahy (Democrat-Vermont), chairman of the Senate
Judiciary Committee, opened November 28 the first of a series of
hearings about implementation of the USA Patriot Act and trials of
terrorists.
He called his speech "Preserving our Freedoms while Defending Against
Terrorism."
In its actions in recent weeks, Leahy said, the Executive Branch has,
"rather than respect the checks and balances that make up our
constitutional framework...chosen to cut out judicial review in
monitoring attorney-client communications and to cut out Congress in
determining the appropriate tribunal and procedures to try
terrorists."
The Senate Judiciary Committee chairman said that "the three
institutional pillars of our democratic government, standing together,
are stronger guarantees of our freedoms than any one branch standing
alone."
Following is the November 28 opening statement by Senator Leahy:
(begin Leahy text)
Opening Statement of Senator Patrick Leahy (Democrat-Vermont),
Chairman, Senate Judiciary Committee
"DOJ Oversight: Preserving Our Freedoms While Defending Against
Terrorism"
November 28, 2001
This is one of a series of hearings this committee is holding on the
Department of Justice's response to the September 11 attacks and on
implementation of the USA PATRIOT Act.
I know I speak for those on both sides of the aisle in beginning this
hearing by commending the hardworking men and women of the agencies of
the Department of Justice and our State and local officers for their
dedicated law enforcement efforts.
At the time Congress worked on the anti-terrorism bill, many observed
how important congressional oversight would be in its aftermath. To
fulfill our constitutional oversight obligation Senator Hatch and I
invited Attorney General Ashcroft to appear before the Committee
today, but he asked to have his appearance put off until next week so
that he could spend time with the U.S. Attorneys who are in town today
and tomorrow. On Monday I learned that the Department was asking that
Mr. Chertoff appear as our first witness at this hearing.
I have accommodated both requests by the Attorney General and look
forward to his appearance before the Committee next week, on December
6. In the meantime, our oversight hearing today and additional
hearings next Tuesday should help build a useful record on several
significant issues.
We are all committed to bringing to justice those involved in the
September 11 attacks and to preventing future acts of terrorism. As we
showed in our passage of anti-terrorism legislation, Congress can act
promptly to equip the Executive Branch with the appropriate tools to
achieve those goals. The Administration requested many new powers, and
after adding important civil liberties protections, we empowered the
Justice Department with new and more advanced ways to track
terrorists.
We passed the bill in record time and with an extraordinary level of
cooperation between Democrats and Republicans, the House and the
Senate, and the White House and Congress. The separate but
complementary roles of these two branches of government, working
together and sharing a unity of purpose, made that bill a better law
than either could have made through unilateral initiative.
In the wake of that achievement, the Administration has departed from
that example to launch a lengthening list of unilateral actions.
Rather than respect the checks and balances that make up our
constitutional framework, the Executive Branch has chosen to cut out
judicial review in monitoring attorney-client communications and to
cut out Congress in determining the appropriate tribunal and
procedures to try terrorists.
The three institutional pillars of our democratic government, standing
together, are stronger guarantees of our freedoms than any one branch
standing alone. America benefits when we trust our system of
government; our system of checks and balances -- to work as it should.
Today we may get some insights into why the Administration has chosen
this new approach.
Today and in the days ahead we will have an opportunity to explore the
Executive action to charter military tribunals that bypass our
civilian justice system, to permit eavesdropping on attorney-client
communications without court orders, and the circumstances under which
hundreds are being detained without public explanation. Whether any or
all of these ideas are popular or unpopular at the moment, as an
oversight committee we accept our duty to examine them.
MILITARY COURTS
The President's Military Order of November 13 paves an overly broad
path to the use of military commissions to try those suspected of a
variety of activities. It is a marked departure from existing
practices and raises a wide range of legal and constitutional
questions and international implications.
As with several of the unilateral steps announced by the
Administration over the last month, a question that puzzles many about
the order on military tribunals is this: What does it truly gain us in
the fight against terrorism? Would military commissions, however
expedient, genuinely serve our national interests in the long term?
As we examine the wisdom of the military order as written, we should
consider the risk whether this could become a template for use by
foreign governments against Americans overseas. As written, the
Military Order does not incorporate basic notions of fairness and due
process that are hallmarks of American justice. It does not specify a
standard of guilt for convicting suspected terrorists.
It decrees that convictions will not be subject to judicial review, a
determination that appears to directly conflict with our international
commitments. It allows the Government to tailor rules to fit its proof
against individual suspects.
In short, the Military Order describes a type of military tribunal
that has often been criticized by the United States when other nations
use them. William Safire, in a column in The New York Times on Monday
(November 12), described it as a "fiat (that) turns back the clock on
all advances in military justice, through three wars, in the past
half-century." And what would this mean for Americans abroad or for
the traveling public, or, in another instance, for the many U.S.
humanitarian aid workers who often serve in areas subject to
autocratic and unstable regimes? We do not want, inadvertently, by our
example, to encourage the type of "rough justice" those regimes could
mete out under military order.
Moreover, these military tribunals may greatly inhibit cooperation
from our partners in the fight against terrorism. Spain recently
captured several suspects it believes are complicit in the September
11 attacks. Last week Spain announced that it would not extradite
suspects to the United States if they would be tried by military
commissions instead of civilian courts. News reports indicate that
other European allies share Spain's concerns, and so might other
allies in the Middle East and elsewhere.
We are the most powerful nation on earth, and sometimes we indulge in
the luxury of going it alone. In the struggle against terrorism, we do
not have that option. We need the support of the international
community to prevail in a battle that the Administration predicts
could last several years. Would these military tribunals be worth
jeopardizing the cooperation we expect and need from our allies?
Apart from these practical issues, questions remain about the
Executive Branch's authority to establish military commissions on its
own and without specific congressional authorization. The Constitution
entrusts the Congress with the power to "define and punish . . .
Offenses against the law of Nations."
On those rare occasions when military commissions have been used in
the past, Congress played a role in authorizing them. This
administration has preferred to go it alone, with no authorization or
prior consultation with the Legislative Branch. This is no mere
technicality. It fundamentally jeopardizes the separation of powers
that undergirds our constitutional system, and it may undercut the
legality of any military tribunal proceeding.
Finally, there is the danger that if we rush to convict suspects in a
military commission relying on circumstantial or hearsay evidence
tailored to serve the government's case we deepen the risk of
convicting the wrong people, leaving real terrorists at large. The
Administration has cited the landmark case against German saboteurs
during World War II as a precedent. Let's look more closely at that
precedent.
Two of the eight Germans who landed in New York immediately informed
the Department of Justice about their colleagues plans. The actions of
these men were covered up by J. Edgar Hoover, the FBI director at the
time. It now appears that Mr. Hoover was more interested in claiming
credit for the arrests than in ensuring fair treatment for the two
informants, who were tried with the others, in secret, and sentenced
to death before their sentences were commuted to long prison terms at
hard labor.
The lesson is that secret trials and lack of judicial oversight can
breed injustice and taint the legitimacy of verdicts. Our procedural
protections are not simply inconvenient impediments to convicting and
punishing guilty people. They also promote accurate and just verdicts.
In sum, it sends a terrible message to the world that, when confronted
with a serious challenge, we lack confidence in the very institutions
we are fighting for beginning with a justice system that is the envy
of the world. Supreme Court Justice Frank Murphy, dissenting in
another World War II-era case involving the use of a military
commission, called the procedure "unworthy of the traditions of our
people or of the immense sacrifices that they have made to advance the
common ideals of mankind." He concluded: "If we are ever to develop an
orderly international community based upon a recognition of human
dignity it is of the utmost importance that the necessary punishment
of those guilty of atrocities be as free as possible from the ugly
stigma of revenge and vindictiveness. ... Otherwise stark retribution
will be free to masquerade in a cloak of false legalism. And the
hatred and cynicism engendered by that retribution will supplant the
great ideals to which this nation is dedicated." [In re Yamashita, 327
U.S. 1, 28-30(1946)]
CONCLUSION
The Justice Department's actions since September 11 have raised many
serious questions and concerns, and I hope that today serves as the
beginning of a reevaluation of some of the policies that have been put
in place, as well as the way in which they have been established.
Earlier generations of Americans have stared evil in the face. Now, so
do we. Trial by fire can refine us, or it can coarsen us. It can
corrode our ideals and erode our freedom. But if we are guided by our
ideals, we can be both tough and smart in fighting terrorism.
The Constitution was not written primarily for our convenience, but
for our liberty. Many of the choices that we will face after September
11 will test both our ideals and our resolve to defend them. As these
choices emerge, let us first pause long enough to ask: What does it
gain us?
I look forward to hearing from our witnesses today, and to hearing
from the Attorney General next week.
(end Leahy text)
(Distributed by the Office of International Information Programs, U.S.
Department of State. Web site: http://usinfo.state.gov)



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