Congressional Record: February 13, 2002 (Senate) Page S733-S745 STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. SPECTER (for himself and Mr. Durbin): S. 1937. A bill to set forth certain requirements for trials and sentencing by military commissions, and for other purposes; to the Committee on Armed Services. Mr. SPECTER. Mr. President, I have sought recognition to introduce, on behalf of Senator Durbin and myself, legislation entitled the "Military Commission Procedures Act of 2002." The President issued an order establishing generalized procedures for trying members of al-Qaida and the Taliban. It is my view and Senator Durbin's view that Congress ought to consider what are the appropriate procedures pursuant to our authority under the Constitution, article I, section 8, which gives to the Congress the responsibility and authority "To define and punish . . . Offenses against the Law of Nations." We have already legislated in part, delegating to the President the authority to establish military tribunals "by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter." The President promulgated his order without consultation with Congress. This legislation is a starting point for what we believe ought to be consideration by the Judiciary Committee. In the President's order, there was a provision that there could be no appeal from any order of the military tribunal. But that, on its face, was inconsistent with the Constitution, which preserves the right of habeas corpus unless there is rebellion or invasion, neither of which had occurred here. The President's order also allowed for conviction of a capital offense by a two-thirds vote, but that is inconsistent with the Uniform Code of Military Justice, and the law does not allow a regulation to be inconsistent with that law. So Senator Durbin and I have provided the modifications that two- thirds is acceptable generally. But if the sentence carries 10 years or more, it requires a three-fourths vote. And for the death penalty, it would require a unanimous vote. This legislation further provides for right to counsel consistent with the Uniform Code of Military Justice, which would be either military counsel or could be private counsel. But that right is preserved. On one provision, we have provided that there would be no "Miranda" rights for suspects who are interrogated. I candidly concede that in abrogating "Miranda" rights, that will be a source of some contention, which can be the subject of hearings. But it is our view that we should not give al-Qaida or Taliban prisoners access to counsel before they are questioned, first, for the safety of the soldiers who are doing the questioning, and, second, because of the importance, potentially, that eliciting information would stop further terrorist attacks. Of course, we could provide no "Miranda" warnings in advance but not allow admissions to be used at trial, but it is our view, subject to hearings and further consideration, that "Miranda" rights ought not to be required. We have provided for an open trial unless there is classified information; and, if classified information is used, we have incorporated the provisions of the Anti-Terrorism Act of 1996--a compromise worked out by Senator Simon and myself on the floor--which provides for a summary to be given to the defendant and the commission, to be reviewed by the commission, to see if it is adequate to protect sources and methods of classified information and also adequate to inform the defendant of the evidence so that the defendant would have substantially the same ability to make his defense as he would if the classified information was disclosed. [[Page S734]] We have not provided any restrictions on rules of evidence, since it is the custom of Congress not to do so. But we think this legislation is an important first step. We now know there is a large contingent of those captive in Guantanamo Bay. I believe the President made a sound decision in saying that al-Qaida members were not prisoners of war, not subject to the Geneva Convention because they are terrorists, murdering innocent civilians. The President did accord Taliban members the protections of the Geneva Convention. But these trials will soon start. It is very important that our country and our Government proceed with accepted norms for criminal trials. To have a death penalty imposed on a two-thirds vote, as is in the Presidential order, would not be consistent with our generalized standards. To provide for no appeal is not consistent with the constitutional provisions. The ACTING PRESIDENT pro tempore. The Senator's time has expired. Mr. SPECTER. I ask unanimous consent for 30 seconds to finish my sentence, Mr. President. The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. Mr. SPECTER. We believe this is a starting point. We urge early hearings so we can establish the parameters, so when we deal with these treacherous terrorists, we will, in accordance with American standards, give them basic due process--no more, but basic due process. Mr. DURBIN. Mr. President, on November 13, 2001, President Bush issued a military order authorizing the use of military commissions to prosecute individuals who may be engaged in activities related to the subject of our campaign against terrorism. The initial public reaction to the White House action was one of surprise and skepticism: Surprise that the order was issued without any advance notice, and skepticism as to whether the decision is based on sound legal or policy grounds. Many commentators also raised legitimate concerns that the Administration's use of military tribunals could potentially undermine our long-held foreign policy of criticizing other nations' reliance on such tribunals. My reaction, which, I believe, was echoed by many of my colleagues in Congress, was one of disappointment, in addition to the surprise and skepticism. I was disappointed that Congress was excluded from deliberating a policy as important as this one before the White House announced the order. I have said repeatedly since September 11 that I fully support the President in his efforts to combat terrorism both here and abroad. In response to September 11, Congress worked hand in hand with the administration on a host of items in a truly cooperative and bipartisan manner, from the passage of a joint resolution authorizing the President to use all necessary force, to the passage of the sweeping anti-terrorism bill. Yet on the drafting of this military order, Congress was left completely in the dark. The Constitution provides executive powers to the President, not exclusive powers. Our Nation remains strong only if the co-equal branches of government work together. Any proceeding that takes place under President Bush's order will have to withstand the test of legal scrutiny for years to come. But more importantly, it will also have to pass the scrutiny of our citizens at home and of our friends and enemies abroad who are watching to see how the greatest democracy in history carries out justice. At the Judiciary Committee hearing held in early December, Senator Specter and I both questioned the administration's witness to ascertain the precise constitutional authority upon which the administration was relying in creating this tribunal. We did not receive a satisfactory answer. We also wanted to know the precise scope and reach of the order in terms of who will be brought before such a tribunal, what procedural and evidentiary standards are to be applied, and what due process safeguards, including appeals, will be in place. We did not receive many details here either. Instead, the administration asked us to wait for the regulations implementing the order that the Defense Department was preparing. It has been over 3 months since the President's order was issued, and we have not seen the Defense Department regulations. So I believe it is appropriate for Congress to act now to provide the constitutional authority and guidance on procedures before the first military commission is empaneled under the President's order. I am introducing the "Military Commission Procedures Act of 2002" with Senator Specter. I believe this bill will provide the executive branch with the legal authority to prosecute potential terrorists captured in the current military campaign abroad. Our bill is designed to ensure that military commissions are used in the most narrow and necessary circumstances while protecting the basic rights of defendants. The bill limits the jurisdiction of military commissions to try defendants only for violations of the law of war, and not any domestic laws. The defendants would be entitled to representation by counsel in the same manner as military service members under the Uniform Code of Military Justice. The prosecution would need to prove its case beyond a reasonable doubt, and the death penalty could not be imposed without a unanimous vote as to guilt and to the sentence. Furthermore, in order to keep the proceedings as open as possible, our bill provides for classified information procedures where the defendant would receive a summary of such evidence while the commission considers the actual evidence in camera and ex parte. The bill also authorizes convicted defendants to petition the U.S. Supreme Court for certiorari. In short, Senator Specter and I believe this bill includes the details that the President's military order of November 13 should have included. More importantly, the bill provides the full force of the congressional and constitutional support behind the President's continuing efforts to wage a war against terrorism. I urge my colleagues to join us in supporting this legislation.