MCCAIN URGES FINAL PASSAGE OF THE MILITARY COMMISSIONS ACT OF 2006
posted by demzrule
09/28/2006 05:01:42 PM EST
MCCAIN URGES FINAL PASSAGE OF THE MILITARY COMMISSIONS ACT OF 2006
Washington D.C. – U.S. Senator John McCain (R-AZ) today delivered the following remarks on the floor of the Senate regarding the Military Commissions Act of 2006:
“Mr. President, almost exactly three months ago, the Supreme Court decided the groundbreaking case of Hamdan v. Rumsfeld. In that case, a majority of the Court ruled that the military procedures used to try detainees held at Guantanamo Bay fell short of the standards of the Uniform Code of Military Justice and the Geneva Conventions. The Court also determined that Common Article 3 of the Geneva Conventions applies to al Qaeda because our conflict with that terrorist organization is “not of an international character.” Some of my colleagues may disagree with the Court’s decision, but, once issued, it became the law of the land.
“Unfortunately, the Hamdan decision left in its wake a void and uncertainty that Congress needed to address – and address quickly – in order to continue fighting the war on terrorism. The Military Commissions Act of 2006, I believe, allows us to do that in a way that protects our soldiers and other personnel fighting on the front lines and respects core American principles of justice. I would like to thank Senators Warner and Graham for their unceasing work on this bill. It is certainly one of the most important pieces of legislation that the Senate will consider this year, and it is imperative that Congress pass it as soon as possible.
“I would like to take a few moments to describe some of the key elements of this legislation.
“As is by now well known, Senators Warner, Graham, and I have resisted any redefinition or modification of our Nation’s obligations under Common Article 3 of the Geneva Conventions. We did so because we care deeply about legal protections for American fighting men and women, and about America’s moral standing in the world. More than 50 retired military general and flag officers expressed grave concern about redefining our Geneva obligations, including five former Chairmen of the Joint Chiefs of Staff. I would like to submit for the Record letters from General Colin Powell, General Jack Vessey, and General Hugh Shelton, and a letter signed by dozens of former officers. These men express one common view: that modifying the Geneva Conventions would be a terrible mistake, and would put our personnel at greater risk in this war and the next. If America is seen to be doing anything other than upholding the letter and spirit of the Conventions, it will be harder, not easier, to defeat our enemies. I am pleased that this legislation before the Senate does not amend, redefine, or modify the Geneva Conventions in any way. The Conventions are preserved intact.
“The bill does provide needed clarity for our personnel about what activities constitute war crimes. For the first time, there will be a list of nine specific activities that constitute criminal violations of Common Article 3, punishable by imprisonment or even death. There has been much public discussion about specific interrogation methods that may be prohibited. But it is unreasonable to suggest that any legislation could provide an explicit and all-inclusive list of what specific activities are illegal and which are permitted. Still, I am confident that the categories included in this section will criminalize certain interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not be prolonged.
“Some critics of this legislation have asserted that it gives amnesty to U.S. personnel who may have committed war crimes since the enactment of the War Crimes Act. Nothing could be further from the truth. As currently written, the War Crimes Act makes criminal any and all behavior that constitutes a violation of Common Article 3 – specifically any act that constitutes an “outrage upon personal dignity.” Observers have commented that, though such outrages are difficult to define precisely, we all know them when we see them. However, neither I nor any other responsible member of this body should want to prosecute and potentially sentence to death any individual for violating such a vague standard.
“The specificity that the bill provides to the War Crimes Act – and its retroactive effect – will actually make prosecuting war criminals a realistic goal. None of my colleagues should object to that goal.
“It is also important to note that the acts that we propose to enumerate in the War Crimes Act are not the only activities prohibited under this legislation. The categories enumerated in the War Crimes Act list only those violations of Common Article 3 that are so grave as to constitute felonies potentially punishable by death. The legislation states explicitly that there are other, non-grave breaches of Common Article 3.
“The Military Commissions Act also requires the President to publish his interpretations of the Geneva Conventions, including what violations constitute non-grave breaches, in the Federal Register. These interpretations will have the same force as any other administrative regulation promulgated by the executive branch, and thus may be trumped by law passed by Congress.
“Simply put, this legislation ensures that we respect our obligations under Geneva, recognizes the President’s constitutional authority to interpret treaties, and brings accountability and transparency to the process of interpretation by ensuring that the executive’s interpretation is made public. The legislation would also guarantee that Congress and the judicial branch will retain their traditional roles of oversight and review with respect to the President’s interpretation of non-grave breaches of Common Article 3.
“In short, whereas last year only one law – the torture statute – was deemed to apply to the treatment of all enemy detainees, now there is a set of overlapping and comprehensive legal standards that are in force: the Detainee Treatment Act, with its prohibition on cruel, inhuman and degrading treatment as defined by the 5th, 8th, and 14th amendments to the Constitution; Common Article 3 of the Geneva Conventions; and the War Crimes Act.
“This legislation will allow the CIA to continue interrogating prisoners within the boundaries established in the bill. Let me state this flatly: it was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so. At the same time, the CIA’s interrogation program has to abide by the rules, including the standards of the Detainee Treatment Act.
“I, like many of my colleagues, find troubling the reports that our intelligence personnel feel compelled to purchase liability insurance because of the lack of legal clarity that exists in the wake of the Hamdan decision. This legislation provides an affirmative defense for any government personnel prosecuted under the War Crimes Act for actions they reasonably believed to be legal at the time. In addition, it would eliminate any private right of action against our personnel based on a violation of the Geneva Conventions. The intent of this provision is to protect officers, employees, members of the Armed Forces, and other agents of the United States from suits for money damages or any other lawsuits that could harm the financial well-being of our personnel who were engaged in lawful activities.
“It is important to note, however, that the fact that the Geneva Conventions lack a private right of action – and the fact that this legislation does not create such a right – has absolutely no bearing on whether the Conventions are binding on the Executive branch. Even if the Geneva Conventions do not enable detainees to sue our personnel for money damages, the President and his subordinates are nevertheless bound to comply with Geneva. That is clear to me and to all who have negotiated this legislation in good faith.
“This point is critical, because our personnel deserve not only the legal protections written into this legislation, but also the undiluted protections offered since 1949 by the Geneva Conventions. Should the United States be seen as amending, modifying, or redefining the Geneva Conventions, it would open the door for our adversaries to do the same, now and in the future. The United States should champion the Geneva Conventions, not look for ways to get around them, lest we invite others to do the same. America has more personnel deployed, in more places, than any other country in the world, and this unparalleled exposure only serves to further demonstrate the critical importance of our fulfilling the letter and the spirit of our international obligations. To do any differently would put our fighting men and women directly at risk. We owe it to our fighting men and women to uphold the Geneva Conventions, just as we have done for 57 years.
“For these reasons, this bill makes clear that the United States will fulfill all of its obligations under those Conventions. We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act, but with all of our obligations under Common Article 3 of the Geneva Conventions.
“Finally, I would note that there has been opposition to this legislation from some quarters, including the New York Times editorial page. Without getting into a point-by-point rebuttal here on the floor, I would simply say that I have been reading the Congressional Record trying to find the bill that page so vociferously denounced. The hyperbolic attack is aimed not at any bill this body is today debating, nor even at the Administration’s original position. I can only presume that some would prefer that Congress simply ignore the Hamdan decision, and pass no legislation at all. That, I suggest to my colleagues, would be a travesty.
“I urge my colleagues to support this legislation.”
Washington D.C. – U.S. Senator John McCain (R-AZ) today delivered the following remarks on the floor of the Senate regarding the Military Commissions Act of 2006:
“Mr. President, almost exactly three months ago, the Supreme Court decided the groundbreaking case of Hamdan v. Rumsfeld. In that case, a majority of the Court ruled that the military procedures used to try detainees held at Guantanamo Bay fell short of the standards of the Uniform Code of Military Justice and the Geneva Conventions. The Court also determined that Common Article 3 of the Geneva Conventions applies to al Qaeda because our conflict with that terrorist organization is “not of an international character.” Some of my colleagues may disagree with the Court’s decision, but, once issued, it became the law of the land.
“Unfortunately, the Hamdan decision left in its wake a void and uncertainty that Congress needed to address – and address quickly – in order to continue fighting the war on terrorism. The Military Commissions Act of 2006, I believe, allows us to do that in a way that protects our soldiers and other personnel fighting on the front lines and respects core American principles of justice. I would like to thank Senators Warner and Graham for their unceasing work on this bill. It is certainly one of the most important pieces of legislation that the Senate will consider this year, and it is imperative that Congress pass it as soon as possible.
“I would like to take a few moments to describe some of the key elements of this legislation.
“As is by now well known, Senators Warner, Graham, and I have resisted any redefinition or modification of our Nation’s obligations under Common Article 3 of the Geneva Conventions. We did so because we care deeply about legal protections for American fighting men and women, and about America’s moral standing in the world. More than 50 retired military general and flag officers expressed grave concern about redefining our Geneva obligations, including five former Chairmen of the Joint Chiefs of Staff. I would like to submit for the Record letters from General Colin Powell, General Jack Vessey, and General Hugh Shelton, and a letter signed by dozens of former officers. These men express one common view: that modifying the Geneva Conventions would be a terrible mistake, and would put our personnel at greater risk in this war and the next. If America is seen to be doing anything other than upholding the letter and spirit of the Conventions, it will be harder, not easier, to defeat our enemies. I am pleased that this legislation before the Senate does not amend, redefine, or modify the Geneva Conventions in any way. The Conventions are preserved intact.
“The bill does provide needed clarity for our personnel about what activities constitute war crimes. For the first time, there will be a list of nine specific activities that constitute criminal violations of Common Article 3, punishable by imprisonment or even death. There has been much public discussion about specific interrogation methods that may be prohibited. But it is unreasonable to suggest that any legislation could provide an explicit and all-inclusive list of what specific activities are illegal and which are permitted. Still, I am confident that the categories included in this section will criminalize certain interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not be prolonged.
“Some critics of this legislation have asserted that it gives amnesty to U.S. personnel who may have committed war crimes since the enactment of the War Crimes Act. Nothing could be further from the truth. As currently written, the War Crimes Act makes criminal any and all behavior that constitutes a violation of Common Article 3 – specifically any act that constitutes an “outrage upon personal dignity.” Observers have commented that, though such outrages are difficult to define precisely, we all know them when we see them. However, neither I nor any other responsible member of this body should want to prosecute and potentially sentence to death any individual for violating such a vague standard.
“The specificity that the bill provides to the War Crimes Act – and its retroactive effect – will actually make prosecuting war criminals a realistic goal. None of my colleagues should object to that goal.
“It is also important to note that the acts that we propose to enumerate in the War Crimes Act are not the only activities prohibited under this legislation. The categories enumerated in the War Crimes Act list only those violations of Common Article 3 that are so grave as to constitute felonies potentially punishable by death. The legislation states explicitly that there are other, non-grave breaches of Common Article 3.
“The Military Commissions Act also requires the President to publish his interpretations of the Geneva Conventions, including what violations constitute non-grave breaches, in the Federal Register. These interpretations will have the same force as any other administrative regulation promulgated by the executive branch, and thus may be trumped by law passed by Congress.
“Simply put, this legislation ensures that we respect our obligations under Geneva, recognizes the President’s constitutional authority to interpret treaties, and brings accountability and transparency to the process of interpretation by ensuring that the executive’s interpretation is made public. The legislation would also guarantee that Congress and the judicial branch will retain their traditional roles of oversight and review with respect to the President’s interpretation of non-grave breaches of Common Article 3.
“In short, whereas last year only one law – the torture statute – was deemed to apply to the treatment of all enemy detainees, now there is a set of overlapping and comprehensive legal standards that are in force: the Detainee Treatment Act, with its prohibition on cruel, inhuman and degrading treatment as defined by the 5th, 8th, and 14th amendments to the Constitution; Common Article 3 of the Geneva Conventions; and the War Crimes Act.
“This legislation will allow the CIA to continue interrogating prisoners within the boundaries established in the bill. Let me state this flatly: it was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so. At the same time, the CIA’s interrogation program has to abide by the rules, including the standards of the Detainee Treatment Act.
“I, like many of my colleagues, find troubling the reports that our intelligence personnel feel compelled to purchase liability insurance because of the lack of legal clarity that exists in the wake of the Hamdan decision. This legislation provides an affirmative defense for any government personnel prosecuted under the War Crimes Act for actions they reasonably believed to be legal at the time. In addition, it would eliminate any private right of action against our personnel based on a violation of the Geneva Conventions. The intent of this provision is to protect officers, employees, members of the Armed Forces, and other agents of the United States from suits for money damages or any other lawsuits that could harm the financial well-being of our personnel who were engaged in lawful activities.
“It is important to note, however, that the fact that the Geneva Conventions lack a private right of action – and the fact that this legislation does not create such a right – has absolutely no bearing on whether the Conventions are binding on the Executive branch. Even if the Geneva Conventions do not enable detainees to sue our personnel for money damages, the President and his subordinates are nevertheless bound to comply with Geneva. That is clear to me and to all who have negotiated this legislation in good faith.
“This point is critical, because our personnel deserve not only the legal protections written into this legislation, but also the undiluted protections offered since 1949 by the Geneva Conventions. Should the United States be seen as amending, modifying, or redefining the Geneva Conventions, it would open the door for our adversaries to do the same, now and in the future. The United States should champion the Geneva Conventions, not look for ways to get around them, lest we invite others to do the same. America has more personnel deployed, in more places, than any other country in the world, and this unparalleled exposure only serves to further demonstrate the critical importance of our fulfilling the letter and the spirit of our international obligations. To do any differently would put our fighting men and women directly at risk. We owe it to our fighting men and women to uphold the Geneva Conventions, just as we have done for 57 years.
“For these reasons, this bill makes clear that the United States will fulfill all of its obligations under those Conventions. We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act, but with all of our obligations under Common Article 3 of the Geneva Conventions.
“Finally, I would note that there has been opposition to this legislation from some quarters, including the New York Times editorial page. Without getting into a point-by-point rebuttal here on the floor, I would simply say that I have been reading the Congressional Record trying to find the bill that page so vociferously denounced. The hyperbolic attack is aimed not at any bill this body is today debating, nor even at the Administration’s original position. I can only presume that some would prefer that Congress simply ignore the Hamdan decision, and pass no legislation at all. That, I suggest to my colleagues, would be a travesty.
“I urge my colleagues to support this legislation.”
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