Comments by Senator Dodd as the Senate prepares to abolish key aspects of our constitution.
Mr. President, on September 11, 2001, America was attacked by ruthless enemies of this country. It is my strong belief that those responsible for orchestrating this plot, and anyone else who seeks to do harm to our nation and our citizens, must be brought to justice, and punished severely.
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. In my view, as we develop such means, we must also ensure that our actions are not counter-productive to our overall efforts to protect America at all levels.
As you know Mr. President, 430 detainees are being held in Guantanamo Bay facilities as so called “enemy combatants.” The President has claimed the authority to detain prisoners indefinitely without formally charging them with a crime, to use questionable interrogation practices which some experts say violate international law banning torture, and to set up secret tribunals in which some detainees could be convicted without ever seeing the evidence against them, while others receive no trials at all. The Supreme Court ruled in Hamdan v. Rumsfeld this activity is unconstitutional. But the groundwork for this decision was laid in the Supreme court decision Hamdi v. Rumsfeld, two years ago, in which Justice Sandra Day O’Connor declared “A state of war is not a blank check for the President.”
Mr. President, the Administration and Republican leadership would have the American people believe that the War on Terror requires a choice between protecting America from terrorism and upholding the basic tenets upon which our country was founded — but not both. This canard has been showcased in every recent election cycle.
I fully reject that reasoning. We can, and we must, balance our responsibilities to bring terrorists to justice, while at the same time protecting what it means to be America. 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 sixty years ago, when they determined how to deal with Nazi leaders guilty of horrendous crimes. There were strong and persuasive voices, at the time, crying out for the execution of these men who had commanded with ruthless efficiency the slaughter of six million innocent Jews and five million other innocent men, women, and children. After World War II, our country was forced to decide if the accused criminals deserved a trial or execution.
This history is particularly personal to me. My father, Thomas Dodd, worked alongside Justice Robert Jackson in prosecuting these trials at Nuremberg. He viewed Nuremberg as one of the most pivotal moments in our history – where America chose to uphold the rule of law rather than succumb to rule of the mob. Let me be clear: these 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 accuser, the right to confront evidence against them, and 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 the 60th anniversary of the first verdict of the Nuremburg trials this Saturday, 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 post-war period affected our nation’s standing in the world, so too do our actions in the post 9-11 era.
The Administration’s initial legislative proposal reinstated secret tribunals and redefined Common Article Three of the Geneva Conventions. Senators on both sides of the aisle and dozens of retired members of the military opposed this proposal.
The Armed Services Committee decided not to rubber-stamp the Administration’s legislation, working in a bipartisan way to craft a more narrowly tailored approach. Unfortunately the bill that we are discussing today is not the one which passed through the Committee process.
The bill before us was worked out between several of my Republican colleagues and the White House and does contain some improvements over the Bush Administration’s original proposal. However, I remain concerned about several provisions in the pending legislation. The bill would strip detainees of their habeas corpus rights – a very troublesome provision. There is a strong belief among Senators on both sides of the aisle that this provision is not only inadvisable, it is flatly unconstitutional.
The Armed Services Committee bill prohibited the use of all evidence that was coerced through illegal methods. The bill before us today only prohibits “cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eight, and Fourteenth Amendments to the U.S. Constitution” obtained after December 30, 2005. The Administration claims that they need to employ interrogation techniques whose methods are questionable both morally and practicably. As you know Mr. President, this notion has been dispelled handily by one of our colleagues who has first hand experience as a prisoner of war. In a Newsweek op-ed dated November 21, 2005, our colleague Senator McCain wrote, “The abuse of prisoners harms, not helps, our war effort. In my experience, abuse of prisoners often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear—whether it is true or false—if he believes it will relieve his suffering.”
Mr. President, I will take a backseat to no one in supporting the use of whatever tools are available to keep America safe. But the use of waterboarding and extreme sleep deprivation, to name just a few, undermines America’s moral authority and provides dubious results. This arbitrary deadline makes a mockery of the principle underlying the prohibition and seems to run counter to the view’s expressed in Senator McCain’s op-ed.
I applaud the fact that this bill drops the language in which the United States would seek to redefine its commitments under Common Article 3 of the Geneva Conventions. However, I am deeply troubled that this legislation allows the President to define our commitments under the Geneva Conventions through regulation rather than legislation. In doing so, Congress is shirking its oversight responsibilities. We undermine the separation of powers, a guiding doctrine of our Constitution, in allowing the Executive branch to unilaterally decree what interrogation techniques are permitted without legislative review.
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 these aims.
I support the efforts of our colleagues, Senators Levin, Specter, Kennedy, Rockefeller and Byrd to correct the serious defects with the pending legislation. It now appears doubtful that any of these amendments are likely to be adopted by the Senate. Therefore, in good conscience I will vote no on final passage when that occurs later today.
As Justice Jackson said at Nuremberg, “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.” Mr. President, to rubber-stamp the Administration’s bill would poison one of the most fundamental principles of American democracy. I urge my colleagues not to allow that to happen.