FKUKE BUSHIT MILITARY DESERTER WANT KANGAROO COURTS
Similarly, there was no formal question raised that President Truman should have consulted with Congress before agreeing with the other Allied Powers to use an International Military Tribunal to try the major Nazi war criminals. Telford Taylor, the Anatomy of the Nuremberg Trials 73 (1992).
GEORGE HAS BEEN DOING FAIRY DUST
Press Release of Senator Sessions
Defending Aagainst Terrorism - Military Commissions
Tuesday, December 4, 2001
DOJ OVERSIGHT: PRESERVING OUR FREEDOMS WHILE I commend Senator Schumer for holding this hearing to examine the use of military commissions to try terrorists who commit war crimes against American citizens.
It is a good and healthy thing to debate and discuss every aspect of these procedures. I welcome that. So has Secretary of Defense Rumsfeld. I would be surprised if we do not find some suggestions to improve the system. But, I must say there has been a host of changes, some very extreme, that are justified by the Constitution, statute, history or reason.
The last example of this tactic was the USA Patriot Act - the Anti-Terrorism Bill - that was vilified by political interest groups as "shredding the Constitution," "stripping our privacy," etc. When the bill was reviewed by more serious minds, however, we found that the bill's provisions did not violate the Constitution, and, after adjustment by Congress, the bill passed with an overwhelming vote.
Similarly, today, with respect to the President's order providing for the use of military commissions, we are hearing the ACLU state that the commissions "could easily be used against any one of some 20 million non-citizens within America." ACLU Urges Congress to Leash New Military Tribunals, Reestablish Oversight (visited Dec. 3, 2001) . In fact, the President's November 13th Military Order has a requirement in addition to non-citizenship: that the non-citizen be a member of al Quaida or engaged in or aiding someone engaged in international terrorism. Military Order of November 13, 2001, § 2(a)(1)(i) and (ii). We can be sure that only a very small fraction of the 20 million non-citizens in America is engaged in international terrorism.
The People for the American Way charges that "the attorney general and his allies are acting in ways that threaten to circumvent  checks and balances, effectively amending our Constitution by executive fiat." Statement of Ralph G. Neas, President of People for the American Way, concerning the Senate Judiciary Committee's hearings on civil liberties, (visited Dec. 3, 2001) . In fact, the President's Military Order is directly consistent with the orders of prior presidents, Congress's statutes providing for military commissions, and the Supreme Court's cases approving the use of military commissions by the President and his military subordinates.
We have heard claims that the President's Order will result in "secret trials." Written Testimony of Kate Martin, Hearing Before the Committee on the Judiciary: DOJ Oversight: Protecting Our Freedoms While Defending Against Terrorism p. 11. (Nov. 28, 2001). In fact, White House Counsel Gonzales has explained that the trials will only be as secret as the "urgent needs of national security" require. Alberto Gonzales, Martial Justice, Full and Fair, New York Times, Nov. 30, 2001, at A27. We do not want judges and jurors to be under death threats from terrorist groups like the judge in the 1998 embassy bombing trial.
We have also heard people compare the President's Military Order to the World War II internment of over 70,000 Japanese based on their race - the Korematsu case. Written Testimony of Prof. Neal Katyul, Hearings Before the Committee on the Judiciary, DOJ: Oversight Protecting Our Freedoms While Defending Against Terrorism, p. 8. In fact, unlike the World War II internment, the President's Military Order expressly provides that persons detained thereunder will be "treated humanely, without any adverse distinction based on race." Military Order of November 13, 2001 § 3(b) (emphasis added) . Further, the military commissions will provide for what the internment order did not - an individualized determination of whether an accused committed a crime, in this case, an international war crime. Finally, I have a press article railing that the President's Military Order amounts to a seizure of "dictatorial power," that it provides for the use of "military kangaroo courts," and that it is a "Soviet-style abomination." William Saphire, Seizing Dictatorial Power, The New York Times, November 15, 2001, at A31. Military trials are full and fair. Our service men and women are subject to them every day. Indeed, F. Lee Bailey, famed criminal defense lawyer, has consistently praised their fairness. It is a slap in the face to America's military and its history of dispensing justice to call this system a 'kangaroo court.'
When seriously examining an issue of national, or in this case international, importance, it is incumbent upon the Senate to separate partisan rhetoric from legitimate substance. I commend Senator Schumer for taking this approach.
With respect to military commissions, my personal experience as a federal prosecutor and as an Army Reserve JAG officer taught me that violation of federal criminal statutes are tried in Article III courts, violation of the Uniform Code of Military Justice are tried before courts-martial, and violations of the laws of war are tried before military tribunals, including military commissions. My experience has also taught me that any court, civilian or military, must be fair and adhere to the rule of law.
Our country has been attacked by ruthless terrorists who slipped into this country, hi-jacked civilian airliners, and killed approximately 4,000 of our civilian citizens without warning, without trial, and without justice. They have declared a war against America and everything that we stand for - liberty, justice, and the rule of law. They have committed war crimes and thus voluntarily gave up the protections that the law provides to civilian or to military servicemen who follow the law of war.
On September 18, 2001, the Congress exercised its authority under the War Powers Act to authorize President Bush to use all necessary military force to defend the United States and our people. Joint Resolution to Authorize the Use of United States Armed Forces Against Those Responsible for Recent Attack Launched Against the Untied States, Pub L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). On November 13, 2001, President Bush issued an order authorizing the trial of captured terrorists for war crimes in military commissions.
It is against this background that we address the questions that have been raised as to the legitimacy of the President's Military Order. We should begin with Constitution and our history.
Constitution, Statute, and Supreme Court Precedent Authorize the Use of Military Commissions - First, the President's Military Order is based on sound legal authority that has been recognized by all three branches of government. Article 2, section 2, Clause 1 of the Constitution provides that the "President shall be Commander and Chief of the Army and Navy of the United States ...." In In re Yamashita, 327 U.S. 1, 10 (1946), the Supreme Court held that the President's commander in chief power includes the power to try war criminals by military commission.
Article I, § 8, cl. 10 of the Constitution confers upon Congress the power "To define and punish ... Offences against the Law of Nations," and the law of nations includes the law of war.
In exercising its constitutional power, Congress passed section 821 of Title 10 of the United States Code that states, in pertinent part: "The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions ... of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions ...." (Emphases added.)
President Roosevelt ordered the trial of eight Nazi saboteurs by military commission in 1942. Military Order of July 2, 1942. In Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court approved President Roosevelt's order. In In re Yamashita, 327 U.S. 1 (1946), the Supreme Court approved the use of a military commission, ordered by General MacArthur, to try a Japanese war criminal.
Thus, President Bush's order to try terrorists involved with killing 4,000 innocent Americans is based on precedent from all three branches of government: Legislative, Executive, and Judicial.
History - Second, American history is replete with examples of the President, or our military commanders, using military commissions to try those charged with offenses against the law of war. General George Washington appointed a military tribunal to try Major Andre, a British spy who was cooperating with Benedict Arnold. Ex parte Quirin, 327 U.S. 1, 31 n.9 (1942).
During the Mexican War of the 1840s, General Winfield Scott ordered military commissions to try offenses against the law of war. Ex parte Quirin, 327 U.S. 1, 31 n.9 (1942).
During the Civil War, Union Army General Order No. 100, provided for the use of "military commissions" to try offenses outside the rules of war. Ex parte Quirin, 317 U.S. 1, 31 n.9 (1942).
During World War II, President Roosevelt used a military commission to try the eight Nazi saboteurs who surreptitiously slipped into this country without military uniform and conspired to blow up government and private property. Ex parte Quirin, 317 U.S. 1 (1942).
After World War II, President Truman agreed to use an International Military Tribunal to try major Nazi war criminals at Nuremberg. Telford Taylor, An Anatomy of the Nuremberg Trials 73 (1992). Further, Generals Eisenhower and MacArthur used military commissions to try hundreds of war criminals in Europe and Asia. See Maximillian Koessler, American War Crimes Trials in Europe, 39 Geo. L.J. 18 (1951).
President Bush's order to try the terrorists involved with killing the 4,000 innocent Americans is consistent with these historic precedents.
Constitution Does Not Require that Procedures be Set by Congress - Third, the President may legally provide for the Department of Defense to draft procedures for the Military Commissions. Congress has expressly provided in section 836 of Title 10 of the United States Code that "[p]retrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in ... military commissions ... may be prescribed by the President ...." (Emphasis added.)
Acting under similar authority, President Roosevelt ordered that the Military Commission that would try the eight Nazi saboteurs would set its own procedures. Military Order of July 2, 1942 ("The Commission shall have power to and shall, as occasion requires, make such rules for the conduct of the proceeding, consistent with the powers of military commissions under the Articles or War, as it shall deem necessary for a full and fair trial of the matters before it.").
President Truman, through his representative Justice Jackson, provided that the Allied prosecutors would submit, and the military tribunal would approve, procedures for conducting the Nuremberg trial. See Charter of the International Military Tribunal Art. 14(e).
President Bush's order to try the terrorists who helped kill 4,000 innocent Americans provides for the issuance of further procedures by the Department of Defense and is thus consistent with the traditional deference that Congress has shown to past Presidents who ordered military commissions.
Different Procedures for Military Commissions - Fourth, military commissions and tribunals dealing with war crimes have traditionally had different means of adopting procedures, different standards of evidence, different voting requirements, and different appeal rights than Article III courts that deal with federal crimes by our citizens and courts-martial that deal with military crimes by our servicemen.
The charter for the Nuremberg International Military Tribunal provides that the prosecutors would draft the procedures prior to trial for the military tribunal's approval, that evidence would be admitted if it had probative value, that a majority vote was sufficient in all cases, and that there would be no appeals. Charter of the International Military Tribunal art. 14(e) (procedures), 19 (evidence), 4(c) (vote), and 26 (appeal).
Similarly, President Roosevelt's proclamation for the trial of the eight Nazi saboteurs by military commission provided for the commission to set its own procedures, for evidence to be admitted when it had probative value to a reasonable man, for conviction by a two-third's vote, and for no direct appeal to a higher court. Military Order of July 2, 1942.
Consistent with these precedents, President Bush's Military Order provides for the Department of Defense to set the procedures, for the admission of evidence with probative value to a reasonable person, for conviction by a two-third's vote, and for no direct appeal. Military Order of November 13, 2001 § 4. Of course, terrorists tried in the United States will have habeas corpus review in the federal courts. Ex parte Quirin, 317 U.S. 1 (1942). Before we criticize the Department of Defense's procedures, we should wait until all the procedures are drafted and we have had an opportunity to review them.
Constitution Does Not Require Consultation - Finally, while Article II, Section 2, Clause 2 of the Constitution indicates that the President should obtain the Advice and Consent of the Senate in appointing federal judges, there is no similar consultation requirement for the issuance of military orders. Article II, Section 2, Clause 1 provides that the President is the Commander in Chief. As Commander in Chief, several Presidents have issued orders and authorized agreements to try war criminals by military tribunal or commission without adhering to a consultation with Congress requirement.
In Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court upheld the constitutionality of the military commission without any reference to a consultation with Congress requirement. The Court held that existing statutes - the pre-Uniform Code of Military Justice statutes - recognized military commissions as the proper forum to try persons accused of war crimes. Id. at 29.
Similarly, there was no formal question raised that President Truman should have consulted with Congress before agreeing with the other Allied Powers to use an International Military Tribunal to try the major Nazi war criminals. Telford Taylor, the Anatomy of the Nuremberg Trials 73 (1992). And the President's subordinates, Generals Eisenhower and MacArthur, issued orders allowing literally hundreds of military commissions to try lesser war criminals without adhering to any consultation with Congress requirement. Maximillian Koessler, American War Crimes Trials in Europe, 39 Goe. L.J. 18 (1951). In In re Yamashita, 327 U.S. 1 (1946), the Supreme Court upheld the use of Military Commissions to try war criminals, again with no mention of a consultation requirement for the President or the Generals with Congress.
The same constitutional and statutory authorizations for the President's use of military commissions remain in the law today. Article II, Section 2, Clause 2; 10 U.S.C. § 821. No additional enactments or resolutions of Congress are required. Accordingly, while a formal consultation by President Bush with Congress would have been politically expedient, it was not constitutionally required. Nonetheless, I am pleased to see this hearing, and I hope to see increased consultation and cooperation with the Congress in the future. Conclusion
In sum, the President had constitutional, congressional, and historical authority to issue the November 13th Military Order calling for trial of the terrorists who helped to kill 4,000 innocent Americans by military commissions. Instead of listening to the knee-jerk reaction of political interest groups attacking the Administration, we should await the issuance of the procedures by the Department of Defense. We should then review the procedures and provide constructive criticism.
I was very pleased Sunday to hear Secretary of Defense Rumsfeld welcome comment and debate on this subject as the DOD drafts its procedures. I am sure the Department of Defense will keep in mind that the procedures by which the accused terrorists are to be judged must be fair in fact and in appearance. As Justice Jackson said in his opening statement at the Nuremberg trial:
"We must never forget that the record on which we judge these defendants 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. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice." Telford Taylor, The Anatomy of the Nuremberg Trials 168 (1992).
Just as history judged the Allied powers by how they conducted the Nuremberg trial, so history will judge America by how we conduct the trials of the terrorists. We do not want history to conclude that America, through these military commissions, rendered "Victor's Justice," but real justice. We have done it before, and we can do it again.
While I will defer to the President until the procedures for the commissions are published by the Department of Defense, I thank the Chairman for holding this hearing, and I look forward to hearing from our excellent witnesses.
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