Mr. President, America was attacked on September 11, 2001, by a ruthless enemy of our Nation. It is my strong belief, as I believe it is the belief of all of us in this Chamber, that those who are responsible for orchestrating this plot…
Mr. President, America was attacked on September 11, 2001, by a ruthless enemy of our Nation. It is my strong belief, as I believe it is the belief of all of us in this Chamber, that those who are responsible for orchestrating this plot and anyone else who seeks to do harm to our country and citizens should be brought to the bar of justice and punished severely. On that I presume there is no debate whatsoever.
These are extraordinary times, and we must act in a way that fully safeguards America's national security. That is why I support the concept of military commissions: to protect U.S. intelligence and expedite judicial proceedings vital to military action under the Uniform Code of Military Justice. As we develop such means, we must also ensure our actions are not counterproductive to our overall effort to protect America at all levels.
The administration and the Republican leadership on this issue would have the American people believe--and this is the unfortunate point-- that the war on terror requires us to make a choice, both here in this Chamber and across the country, between protecting America from terrorism and the choice of upholding the basic tenets upon which our Nation was founded--but not both. This canard, in my view, has been showcased far too often.
I fully reject that reasoning. Americans throughout the previous 200 years have as well. We can and must balance our responsibilities to bring terrorists to justice while at the same time protecting what it means to be an American. To choose the rule of law over the passion of the moment takes courage, but it is the right thing to do if we are to uphold the values of equal justice and due process that are codified in our Constitution.
Our Founding Fathers established the legal framework of our country on the premise that those in government are not infallible. America's leaders knew this 60 years ago when they determined how to deal with Nazi leaders guilty of horrendous crimes. There were strong and persuasive voices at that time crying out for the summary execution of those men who had commanded with ruthless efficiency the slaughter of 6 million innocent Jews and 5 million other innocent men and women. After World War Two, our country was forced to decide whether the accused criminals deserved trial or execution.
There was an article written recently by Professor Luban, a professor at Georgetown University, titled ``Forget Nuremberg--How Bush's new torture bill eviscerates the promise of Nuremberg.'' I ask unanimous consent that the entire article be printed in the Record.
He pointed out something that needs to be made clear. He said:
Make one thing crystal clear, it's the burning desire of
the United States to create international law using those
trials. Great Britain initially opposed the Nuremberg trials
and urged simply shooting top Nazis out of fear, they would
use the trials for propaganda. Stalin favored conducting
trials only to establish punishments, not guilt. Like Great
Britain, he thought punishing the top Nazis should be a
political, and not a legal, decision. The trials happened as
they did only because the United States insisted on them for
purposes of establishing future law--a task that summary
justice at executive say-so could never have done.
At the London conference that wrote the Nuremberg Charter,
France and Russia both objected to criminalizing aggressive
war for anybody but the Axis countries. But Supreme Court
Justice Robert Jackson, the American representative insisted
that creating universally binding international law was the
prime purpose of the tribunal.
And he prevailed in that argument.
The history is particularly poignant to me because my father, who served in this body, from whose desk I speak this morning, served as Robert Jackson's No. 2, as the executive trial counsel at Nuremberg. Mr. President, the Nuremberg trials rendered their first judgment 60 years ago. What an irony indeed that 60 years ago this Saturday, one of the great, if not the greatest, trials of the 20th century was taking us to a point where we are now codifying and moving to international law. The enemies of the United States were not given the opportunity to walk away from their crimes. Rather, they were given the right to face their accusers, the right to confront evidence against them, the right to a fair trial. Underlying that decision was the conviction that this Nation must not tailor its most fundamental principles to the conflict of the moment and the recognition that if we did, we would be walking in the very footsteps of the enemies we despised.
As we approach this 60th anniversary, I think it is important to reflect on the implications of the past as we face new challenges, new enemies, and new decisions. Much as our actions in the postwar period affected our Nation's standing in the world, so, too, do our actions in the post- 9/11 era.
The Armed Services Committee, and I have great respect for my friend, John Warner, decided not to rubberstamp the administration's legislation. Instead they worked in a bipartisan way to craft a more narrowly tailored approach. Unfortunately, the bill we are discussing today is not the one that passed out of that committee. The bill before us today was worked out between several of our Republican colleagues and the White House and does not contain the improvements over the Bush administration's original proposal. I remain concerned about several provisions in the pending legislation.
The bill would strip detainees of their habeas corpus rights. The eloquent remarks of Arlen Specter yesterday should be read by everyone. This longstanding tradition of our country that is about to be abandoned here will be one of the great mistakes I think history will record. There are strong beliefs among Senators on both sides that this provision is not only inadvisable but flatly unconstitutional as well. We must do everything in our power to protect our country from threats to our national security, but it is also incumbent upon every one of us to protect the very foundation upon which our Nation was established. This legislation will not achieve those aims.
I support the efforts, certainly of those who are trying to improve this bill, but I wish to conclude these remarks by quoting Justice Jackson. Justice Jackson said at the conclusion of the Nuremberg trials:
We must never forget that the record on which we judge
these defendants today--is the record on which history will
judge us tomorrow. To pass these defendants a poisoned
chalice is to put it to our lips as well.
To rubberstamp the administration's bill, in my view, would poison one of the most fundamental principles of American democracy. I urge my colleagues not to move in that direction.
Also, if I can, I wish to read from this article which was written by Mr. Luban, talking about the Nuremberg trials, because it is an important moment in our history. He said:
The Nuremberg trials presupposed something about the human
conscience: that moral choice doesn't take its cues solely
from narrow legalisms and technicalities. The new detainee
bill takes precisely the opposite stance: technicality now
triumphs over conscience, and even over common sense. The
bill introduces the possibility for a new cottage industry:
the jurisprudence of pain. It systematically distinguished
``severe pain''--the hallmark of torture--from mere
``serious'' pain--the hallmark of cruel and degrading
treatment, usually thought to denote mistreatment short of
torture. But then it defines serious pain as ``bodily injury
that involves . . . extreme physical pain.'' To untutored
ears, ``extreme'' sounds very similar to ``severe''; indeed,
it sounds even worse than ``severe.'' But in any case, it
certainly sounds worse than ``serious.''
Administration lawyers can have a field day in the coming years reading painful interrogation tactics on the Three Adjective Scale, leaving the rest of us to shake our heads at the essential lunacy of the enterprise.
It is about conscience. It is the fundamental principle which we enshrined and fought for. It was the United States of America that stood and insisted that our allies try to do something to avoid future conflicts, 60 years ago this Saturday. To watch the Senate, on the anniversary of the Nuremberg trials, step away from that great tradition, those great principles enshrined at that time, I think is one of the saddest days I have ever seen in this Senate in my almost 30 years serving in this body.
I hope my colleagues, with a few days to go before the election, put this aside. Let's come back afterward and think more clearly. Too much of politics is written into these decisions. This is the United States of America.
I yield the floor.
Several Senators addressed the Chair.
If I may respond to my colleague from Virginia, for whom I have the greatest respect, it is not only my love and affection for my father; more importantly, it is my love and affection for what he and a group of Americans did at a time when others said abandon the rule of law: They stood up at a time when it was tempting not to do so. World opinion certainly was against them in many ways. These were dreadful human beings. These people murdered millions, incinerated millions of people. Yet people such as my father and Robert Jackson and others stood up and said: No, we are going to be different than they are. The rule of law is so critically important to us that we want to show the civility of this great country of ours and how the last part of the 20th century can be conducted differently. It is not just my affection for my father; it is more the affection for what they did in
a moment, against public opinion, to set the gold standard and set us apart.
We have been known as the nation of Nuremberg. My fear is now we will be known as the nation of Guantanamo, and I worry about that.
If our colleague would yield, I do not disagree, but I don't think there is a choice between upholding the principles of America and fighting terrorism. Every generation of Americans will face their own threats. This is ours. Every previous generation faced serious threats, and they did not abandon the principles upon which this country is founded. I am fearful we are going to do that today.