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The Flaws in the Military Commissions Act

by Sen. RUSSELL FEINGOLD

Let me be clear: I welcome efforts to bring terrorists to justice. It is about time. This Administration has too long been distracted by the war in Iraq from the fight against al Qaeda. We need a renewed focus on the terrorist networks that present the greatest threat to this country.

But we wouldn’t be where we are today, five years after September 11 with not a single Guantanamo Bay detainee having been brought to trial, if the President had come to Congress in the first place, rather than unilaterally creating military commissions that didn’t comply with the law. The President wanted to act on his own, and he dared the Supreme Court to stop him. And he lost. The Hamdan decision was an historic rebuke to an Administration that has acted for years as if it were above the law.

Finally, only because he was essentially ordered to do so by the Supreme Court, the President has agreed to consult with Congress. I would have hoped that we would take this opportunity to pass legislation that allows us to proceed in accordance with our laws and our values. That is what separates America from our enemies. These trials, conducted appropriately, have the potential to demonstrate to the world that our democratic, constitutional system of government is our greatest strength in fighting those who attacked us.

And that is why I am saddened that I must oppose this legislation. Because the trials conducted under this legislation will send a very different signal to the world, one that I fear will put our own troops and personnel in jeopardy both now and in future conflicts. To take just a few examples, this legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be put to death. That is simply unacceptable. We would not stand for another country to try our citizens under those rules, and we should not stand for our own government to do so, either.

Not only that, this legislation would deny detainees at Guantanamo Bay and elsewhere-people who have been held for years but have not been tried or even charged with any crime-the ability to challenge their detention in court. Among its many flaws, this is the most troubling-that the legislation seeks to suspend the Great Writ of habeas corpus.

The legislation before us is better than that originally proposed by the President, which would have largely codified the procedures the Supreme Court has already rejected. And that is thanks to the efforts of some of my Republican colleagues for whom I have great respect and admiration.

But this bill remains deeply flawed, and I cannot support it.

One of the most disturbing provisions of this bill eliminates the right of habeas corpus for those detained as enemy combatants. I support an amendment by Senator Specter to strike that provision from the bill. I ask unanimous consent that my separate statement on that amendment be put in the record at the appropriate point.

Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.

Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.

As a group of retired judges wrote to Congress, habeas corpus “safeguards the most hallowed judicial role in our constitutional democracy–ensuring that no man is imprisoned unlawfully.”

This bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.

Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.

That is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation.

Why would we turn our back on hundreds of years of history and our nation’s commitment to liberty — particularly when there is no good reason to do so? We should be working to provide a lawful system of military commissions so that those who have committed war crimes can be brought to justice. We can do that quite well without denying one of the most basic rights guaranteed by the Constitution to those held in custody by our government.

Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular–the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not, in fact, enemy combatants. Unless any of my colleagues can say with absolute certainty that everyone detained as an enemy combatant was correctly detained–and there is ample evidence to suggest that is not the case–then we should make sure that people can’t simply be locked up forever, without court review, based on someone slapping a “terrorist” label on them.

There is another reason why we must not deprive detainees of habeas corpus, and that is the fact that the American system of government is supposed to set an example for the world, as a beacon of democracy. And this provision will only serve to harm others’ perception of our system of government.

A group of retired diplomats sent a very moving letter explaining their concerns about this habeas-stripping provision. Here is what they said: “To proclaim democratic government to the rest of the world as the supreme form of government at the very moment we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interests in the larger world.”

Many, many dedicated patriotic Americans share these grave reservations about this particular provision of the bill.

They have reservations not because they sympathize with suspected terrorists. Not because they are soft on national security. Not because they don’t understand the threat we face. No. They, and we in the Senate who support the Specter amendment, are concerned about this provision because we care about the Constitution, because we care about the image that American presents to the world as we fight the terrorists. Because we know that the writ of habeas corpus provides one of the most significant protections of human freedom against arbitrary government action ever created. If we sacrifice it here, we will head down a road that history will judge harshly and our descendants will regret.

We must not imperil our proud history. We must not abandon the Great Writ. We must not jeopardize our nation’s proud traditions and principles by suspending the writ of habeas corpus, and permitting our government to pick people up off the street, even in U.S. cities, and detain them indefinitely without court review. That is not what America is about.

Unfortunately, the suspension of the Great Writ is not the only problem with this legislation, nor is it the only instance where the legislation goes beyond establishing military commissions to include unnecessary provisions with deeply troubling results.

The Administration has spoken about the need for this legislation to bring clarity to the War Crimes Act, which makes it a crime to violate Common Article 3 of the Geneva Conventions. It has proposed that we specifically list the actions that would be considered crimes under that law. On the face of it, that certainly sounds sensible. But when you look at this legislation, you realize that the modification it makes only muddies the waters. Not only that, it does so retroactively.

The key problem is in the definition of “cruel or inhuman” treatment. This is a critical definition because it is the provision that determines which coercive interrogation techniques amount to crimes under U.S. law. But because of the complex structure of this section, it is very difficult to understand what the new definition would criminalize, and I am concerned that any ambiguity may be interpreted too narrowly by some. The definition incorporates several terms that in turn have their own separate definitions, and it even has one new definition that doesn’t go into effect until the date of enactment, even though the rest of the amendments to the War Crimes Act are made retroactive to 1997. Frankly, the new prohibition is extremely unclear. And we have already heard different interpretations of it from Senators and Administration officials who negotiated the language. If our goal is to give unambiguous guidance to our personnel, and the courts, this does not do it.

The way the provision is drafted, it even seems designed to grant immunity to senior officials who authorized coercive interrogation techniques.

We should just follow the approach originally endorsed by the Senate Armed Services Committee, which would have applied the language of the McCain amendment.

I am also very concerned about the definition of unlawful enemy combatant that is included in this legislation, and about the corresponding issue of the jurisdiction of the military commissions.

This legislation has been justified as necessary to allow our government to prosecute Khalid Sheikh Mohammed and other dangerous men recently transferred to Guantanamo Bay. Yet if you look at the fine print of this legislation, it becomes clear that it is much, much broader than that. It would permit trial by military commission not just for those accused of serious terrorist crimes, but also individuals, including legal permanent residents of this country, who are alleged to have “purposefully and materially supported hostilities” against the United States or its allies.

This is extremely broad, and key terms go undefined. And by including hostilities not only against the United States but also against its allies, the bill allows the U.S. to hold and try by military commission individuals who have never engaged, directly or indirectly, in any action against the United States.

Not only that, but the bill would also define as an unlawful enemy combatant subject to trial by military commission, anyone who “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.” This essentially grants a blank check to the executive branch to decide entirely on its own who can be tried by military commission.

If we are going to establish military commissions outside of our traditional military and civilian justice systems, at a minimum we should explicitly limit their application to the worst of the worst, those who pose a serious threat to our country. We shouldn’t leave it up to just one branch of government to make these incredibly important decisions.

The bulk of this legislation concerns the structure and process of military commissions. Although we heard from many witnesses at congressional hearings this summer that we should hew as closely as possible to the long-established military system of justice, this bill instead essentially starts from scratch and creates a whole new structure. It does so despite Justice Kennedy’s wise advice in his concurrence in Hamdan, where he said: “The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.”

For example, this legislation creates a presumption for the admissibility of hearsay evidence. Now, it is true that because of the exigencies of war and active combat situations, hearsay rules may need to be structured differently than they are in our criminal courts, but the rules laid out in the UCMJ are drafted to handle these same exigencies. While there may need to be some adjustments to the UCMJ hearsay rules, we need not discard them altogether.

The presumption against hearsay is a fundamental protection built into our existing legal structures to ensure that proceedings yield a just and fair result. Yet in this provision and elsewhere, the legislation erodes such protections-going far beyond what is allowed in the military system-and without justification.

Even more disturbing is that the bill appears to permit individuals to be convicted, and even sentenced to death, on the basis of coerced testimony. According to the legislation, statements obtained through cruel, inhuman, or degrading treatment, as long as it was obtained prior to December 2005 when the McCain amendment become law, would apparently be admissible in many instances in these military commissions.

Now, it is true that the bill would require the commission to find these statements have sufficient reliability and probative value. But why would we go down this road of trying to convict people based on statements obtained through cruel, inhuman, or degrading interrogation techniques? Either we are a nation that stands against this type of cruelty and for the rule of law, or we are not. We can’t have it both ways.

The idea that coerced statements can be used as long as they were obtained long enough ago is appalling. It seems to assume that there was a lack of clarity in the law prior to December 2005. In fact, there was great clarity, until this Administration decided to invent a narrow definition of torture that had never been used or accepted anywhere in the civilized world. The McCain amendment was needed to get this Administration to return to the law. It was a repudiation of the legal theories of the infamous Bybee memo, which the Administration even said it was withdrawing once it was publicly revealed. Its enactment should not now be used as a dividing point before which evidence obtained through cruel and inhuman treatment can be used in court.

At times of great adversity, the strength of a nation’s convictions is tested and its true character revealed. If we sacrifice or qualify our principles in the face of the tremendous challenge we face from terrorists who want to destroy America, we will be making a terrible mistake. If we cloak cruel or degrading interrogations done in the name of American safety with euphemisms like “alternative techniques,” if we create arbitrary dates for when differing degrees of morality will apply, we will have betrayed our principles and ourselves.

Statements obtained through such techniques should not be admissible, even against the most vicious killers in the world, in proceedings held by the government of the United States of America. Period.

In sum, this legislation is very troubling and in many respects legally suspect. I fear the end result of this legislation will only be more delay. It will surely be subject to further legal challenge, and may squander another four or five years while cases work their way through the courts again.

We can and must fight terrorism aggressively without compromising fundamental American values. We must remember what the Army Judge Advocate General told me at a Judiciary Committee hearing this summer: that the United States should set an example for the world, and that we must carefully consider the effect on the way our own soldiers will be treated.

In closing let me do something I don’t do very often–and that is quote John Ashcroft. According to the New York Times, at a private meeting of high-level officials in 2003 about the military commission structure, then-Attorney General Ashcroft said: “Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him.” How sad that this Congress would seek to pass legislation about which the same cannot be said.

From remarks on the Senate floor.

 

 

 

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Sen. Russ Feingold, D-Wis., is a member of the Senate Foreign Relations and Intelligence Committees.

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