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“THE CONTINUING DEBATE ON THE USE OF MILITARY COMMISSIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S13276-S13280 on Dec. 14, 2001.
The publication is reproduced in full below:
THE CONTINUING DEBATE ON THE USE OF MILITARY COMMISSIONS
Assistant Attorney General Chertoff testified on November 28 before the Senate Judiciary Committee that ``the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.''
I am proud that the Senate Judiciary Committee is playing a role in sponsoring this national debate, and I appreciate the participation and contributions of all members of the committee--no matter their point of view. Leading constitutional, civil rights and military justice experts have generously shared their time and analyses with the committee, as well as the Attorney General and other representatives of the Department of Justice. No one participant, no one person, and no one party holds a monopoly on wisdom in this Nation. I know that spirited debate is a national treasure. I know what the terrorists will never understand, that our diversity of opinion is not a weakness but a strength beyond measure.
I do not cast aspersions on those who disagree with my views on this subject. I do not challenge their motives and seek to cower them into silence with charges of ``fear mongering.'' I challenge their ideas, and praise them as patriots in a noble cause.
Already, our oversight has provided a better picture of how the administration intends to use military commissions. According to William Safire of the New York Times, Secretary of Defense Donald Rumsfeld called the discourse over military commissions ``useful'' and is reaching outside the Pentagon for input. It now appears that the administration is reconsidering some of the most sweeping terms of the President's November 13 military order. On its face, that order has broad scope and provides little in the way of procedural protections, but the more recent assurances that it will be applied sparingly and in far narrower circumstances than is suggested by the language of the order have been helpful. While the Judiciary Committee hearings were ongoing, the administration clarified its plans for implementation of the military order in five critical aspects.
First, as written, the military order applies to non-citizens in the United States, which according to testimony before the committee would cover about 20 million people. Two days after we began our series of hearings, the President's counsel indicated that military commissions would not be held in the United States, but rather ``close to where our forces may be fighting.'' Anonymous administration officials have also indicated in press reports that there is no plan to use military commissions in this country but only for those caught in battlefield operations.
Second, the White House counsel has also indicated that the order will only apply to ``non-citizens who are members or active supporters of al-Qaida or other international organizations targeting the United States'' and who are ``chargeable with offenses against the international laws of war.''
Third, while the military order is essentially silent on the procedural safeguards that will be provided in military commission trials, the White House counsel has explained that military commissions will be conducted like courts-martial under the Uniform Code of Military Justice. I have great confidence in our courts-martial system, which offers protections for the accused that rival, and in some cases even surpass, protections in our Federal civilian courts and includes judicial review.
Fourth, nothing in the military order would prevent commission trials from being conducted in secret, as was done, for example, in the case of the eight Nazi saboteurs that has most often been cited by the administration as its model for this order. However, Mr. Gonzales assured us that ``Trials before military commissions will be as open as possible, consistent with the urgent needs of national security.'' Mr. Chertoff's testimony before the committee was along the same lines.
This is in sharp contrast to the statements before our hearings that the ``proceedings promise to be swift and largely secret, with one military officer saying that the release of information might be limited to the barest facts, like the defendant's name and sentence.''
Finally, the order expressly states that the accused in military commissions ``shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly . . . in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.'' Yet, the administration's most recent statements are that this is not an effort to suspend the writ of habeas corpus.
These explanations of the military order by both anonymous and identified administration representatives suggest that, one, the administration does not intend to use military commissions to try people arrested in the United States; two, these tribunals will be limited to ``foreign enemy war criminals'' for ``offenses against the international laws of war''; three, the military commissions will follow the rules of procedural fairness used for trying U.S. military personnel; and four, the judgments of the military commissions will be subject to some form of judicial review. We hope that the Attorney General's responses to written questions from the committee will continue to clarify these critical matters.
The administration apparently contends that an express grant of power from this Congress to establish military commissions is unnecessary. The Attorney General testified before the Judiciary Committee on December 6 that, ``the President's power to establish war-crimes commissions arises out of his power as Commander in Chief.'' A growing chorus of legal experts casts doubt on that proposition, however. Nevertheless, the administration appears to be adamant about going it alone and risking a bad court decision on the underlying legality of the military commission. Why take a chance that the punishment meted out to terrorists by a military commission will not stick due to a constitutional infirmity in the commission's jurisdiction?
I have received a letter signed by over 400 law professors from all over the country, expressing their collective wisdom that the military commissions contemplated by the President's Order are ``legally deficient, unnecessary, and unwise.'' More specifically, these hundreds of legal scholars point out that Article I of the Constitution provides that Congress, not the President, has the power to ``define and punish
. . . Offenses against the Law of Nations.'' Absent specific congressional authorization, they say, the order ``undermines the tradition of the Separation of Powers.''
At our last hearing with the Attorney General, some of my colleagues on the other side of the aisle suggested that the administration had
``essentially won'' the argument on military commissions. This impression is wholly mistaken and I would urge my colleagues to review the record of the hearings before the Senate Judiciary Committee on this issue.
This debate is not about following the polls and playing a game of political ``gotcha'' when the cameras are rolling. When more than 400 law professors speak with one voice, and anyone who has been to law school knows that it is no easy matter to get even two law professors to agree on something, we must carefully consider their opinion that there are serious legal and constitutional problems with the President's course of action.
Their views are consistent with the concerns raised by the constitutional and military justice experts who testified before the committee. Let me just cite a few examples.
Retired Air Force Colonel Scott Silliman and law professor Laurence Tribe argued that the legal basis of the President's Military Order is weak and should be remedied by Congress.
Cass Sunstein of the University of Chicago recommended that basic requirements of procedural justice be met if commissions are established.
Neal Katyal of Yale Law School opined that the order ``usurps the power of Congress'' and ignores the focus of our Constitution's framework.
Kate Martin, Director of the Center for National Security Studies states that the military order ``violates separation of powers as the creation of military commissions has not been authorized by the Congress and is outside the President's constitutional powers.'' She compares this current situation to that ``[w]hen the Supreme Court approved the use of military commissions in World War II'' and
``Congress has specifically authorized their use in Articles of War adopted to prosecute the war against Germany and Japan.''
Phillip Heymann of Harvard Law School testified that he regards the Military Order ``as one of the clearest mistakes and one of the most dangerous claims of executive power in the almost fifty years that [he has] been in and out of government.''
Kathleen Clark of Washington University Law School, St. Louis, in submitted testimony, examines each of the four sources cited by the President for authority for the order and concludes, ``None of these authorize the creation of this type of military tribunal.'' She concludes that ``In this time of uncertainty and fear, it is as important as ever for Congress to ensure that the executive branch abides by the constitutional limits on its authority.''
Timothy Lynch, Director of the CATO Institute's Project on Criminal Justice contends that ``because Article I of the Constitution vests the legislative power in the Congress, not the Office of the President, the unilateral nature of the executive order clearly runs afoul of the separation of powers principle.''
Legal experts around the country are concerned that the President's order does not comport with either constitutional or international standards of due process. As pointed out in the letter from over 400 law professors, this defect has both practical and legal consequences. Legally, it means that the order may be inconsistent with our treaty obligations, which under our Constitution are the ``supreme Law of the Land.'' Practically, it give political cover to those less democratic regimes around the world to mistreat foreign defendants in their courts, and thereby places Americans around the world at risk.
On December 5, I forwarded to the Attorney General in advance of the Judiciary Committee hearing proposed legislation to authorize the President to establish military tribunals to try terrorists captured abroad in connection with the September 11 attacks. In that proposal I outlined a number of procedural safeguards to fulfill the President's command in his military order for a ``full and fair hearing.'' These procedures would bring these tribunals into compliance with our Nation's obligations under international law and treaties to which the United States is a party.
The authorization for and literal terms of the order present serious questions and require some corrective action. That is why I have offered to work with the administration and other members to draft and pass legislation that will clearly authorize and establish procedures for military commissions.
Those of us who take an oath of office to uphold the Constitution, both in the Congress and the administration, have a duty to do more than just listen to the polls. The important thing, after all, is not who wins some political debate the important thing is that America gets this right.
I ask unanimous consent to have the law professors' letter dated December 5, 2001, and an outline of safeguards and the sources for them be printed in the Record.
December 5, 2001.Hon. Patrick J. Leahy,Chairman, Senate Judiciary Committee, Russell Senate Office
Bldg., U.S. Senate, Washington, DC.
Dear Senator Leahy: We, the undersigned law professors and lawyers, write to express our concern about the November 13, 2001, Military Order, issued by President Bush and directing the Department of Defense to establish military commissions to decide the guilt of non-citizens suspected of involvement in terrorist activities.
The United States has a constitutional court system of which we are rightly proud. Time and again, it has shown itself able to adapt to complex and novel problems, both criminal and civil. Its functioning is a worldwide emblem of the workings of justice in a democratic society.
In contrast, the Order authorizes the Department of Defense to create institutions in which we can have no confidence. We understand the sense of crisis that pervades the nation. We appreciate and share both the sadness and the anger. But we must not let the attack of September 11, 2001 lead us to sacrifice our constitutional values and abandon our commitment to the rule of law. In our judgment, the untested institutions contemplated by the Order are legally deficient, unnecessary, and unwise.
In this brief statement, we outline only a few examples of the serious constitutional questions this Order raises:
The Order undermines the tradition of the Separation of Powers. Article I of the Constitution provides that the Congress, not the President, has the power to ``define and punish . . . Offenses against the Law of Nations.'' The Order, in contrast, lodges that power in the Secretary of Defense, acting at the direction of the President and without congressional approval.
The Order does not comport with either constitutional or international standards of due process. The President's proposal permits indefinite detention, secret trials, and no appeals.
The text of the Order allows the Executive to violate the United States' binding treaty obligations. The International Covenant on Civil and Political Rights, ratified by the United States in 1992, obligates State Parties to protect the due process rights of all persons subject to any criminal proceeding. The third Geneva Convention of 1949, ratified by the United States in 1955, requires that every prisoner of war have a meaningful right to appeal a sentence or a conviction. Under Article VI of the Constitution, these obligations are the ``supreme Law of the Land'' and cannot be superseded by a unilateral presidential order.
No court has upheld unilateral action by the Executive that provided for as dramatic a departure from constitutional norms as does this Order. While in 1942 the Supreme Court allowed President Roosevelt's use of military commissions during World War II, Congress had expressly granted him the power to create such commissions.
Recourse to military commissions is unnecessary to the successful prosecution and conviction of terrorists. It presumes that regularly constituted courts and military courts-martial that adhere to well-tested due process are unable to handle prosecutions of this sort. Yet in recent years, the federal trial courts have successfully tried and convicted international terrorists, including members of the al-Qaeda network.
It is a triumph of the United States that, despite the attack of September 11, our institutions are fully functioning. Even the disruption of offices, phones, and the mail has not stopped the United States government from carrying out its constitutionally-mandated responsibilities. Our courts should not be prevented by Presidential Order from visibly doing the same.
Finally, the use of military commissions would be unwise, as it could endanger American lives and complicate American foreign policy. Such use by the United States would undermine our government's ability to protest effectively when other countries do the same. Americans, be they civilians, peace-keepers, members of the armed services, or diplomats, would be at risk. The United States has taken other countries to task for proceedings that violate basic civil rights. Recently, for example, when Peru branded an American citizen a ``terrorist'' and gave her a secret ``trial,'' the United States properly protested that the proceedings were not held in ``open civilian court with full rights of legal defense, in accordance with international judicial norms.''
The proposal to abandon our existing legal institutions in favor of such a constitutionally questionable endeavor is misguided. Our democracy is at its most resolute when we meet crises with our bedrock ideals intact and unyielding.
Respectfully submitted,
Benjamin Aaron, Professor of Law Emeritus, University of California-Los Angeles School of Law; Kenneth Abbott, Elizabeth Froehling Horner Professor of Law and Commerce, Director, Center for International and Comparative Studies, Northwestern University; Richard L. Abel, Visiting Professor, New York University Law School, Connell Professor, University of California-Los Angeles School of Law; Khaled Abou El Fadl, Acting Professor, University of Califorina-Los Angeles School of Law; Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School; Bryan Adamson, Associate Professor of Law, Case Western Reserve University School of Law; Raquel Aldana-Pindell, Assistant Professor of Law, University of Nevada-Las Vegas, William S. Boyd School of Law; Alison Grey Anderson, Professor of Law, University of California-Los Angeles School of Law; Michelle J. Anderson, Associate Professor of Law, Villanova University School of Law; Professor Penelope Andrews, City University of New York School of Law; Fran Ansley, Professor of Law, University of Tennessee College of Law; Keith Aoki, Associate Professor of Law, University of Oregon School of Law; Annette Appell, Associate Professor, University of Nevada-Las Vegas, William S. Boyd School of Law; Jennifer Arlen, Visiting Professor of Law, Yale Law School, Ivadelle and Theodore Johnson Professor of Law & Business, USC Law School; Michael Asimov, Professor of Law Emeritus, University of California-Los Angeles School of Law; Barbara Atwood, Mary Anne Richey Professor of Law, University of Arizona, James E. Rogers College of Law; Michael Avery, Associate Professor, Suffolk Law School; Jonathan B. Baker, Associate Professor of Law, American University, Washington College of Law; Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School; Susan Bandes, Professor of Law, DePaul University College of Law; and Taunya Lovell Banks, Professor of Law, University of Maryland School of Law.
Roger M. Baron, Professor of Law, University of South Dakota School of Law; Gary Basi, Professor of Law, University of California-Los Angeles School of Law; Joseph Bauer, Professor of Law. University of Notre Dame School of Law; Linda M. Beale, University of Illinois College of Law; John S. Beckerman, Associate Dean for Academic Affairs, Rutgers School of Law--Camden; Leslie Bender, Associate Dean & Professor of Law and Women's Studies, Syracuse University College of Law; Robert Bennett, Northwestern University School of Law; Morris D. Bernstein, Associate Clinical Professor, University of Tulsa College of Law; Arthur Best, Professor of Law, University of Denver College of Law; Jerry P. Black, Jr., Associate Clinical Professor, University of Tennessee College of Law; Gary Blasi, Professor of Law, University of California-Los Angeles School of Law; Cynthia Grant Bowman, Professor of Law, Northwestern University School of Law; Francis A. Boyle, Professor of Law, University of Illinois College of Law; Lynn Branham, Visiting Professor of Law, University of Illinois College of Law; Pamela D. Bridgewater, Associate Professor of Law, American University, Washington College of Law; Thomas F. Broden, Professor Emeritus, University of Notre Dame School of Law; Mark S. Brodin, Professor of Law, Boston College Law School; Ralph Brill, Professor of Law, Chicago-Kent College of Law; Theresa J. Bryant, Executive Director and Director of Public Interest, Career Development Office, Yale Law School; Elizabeth M. Bruch, Practitioner-in-Residence, American University, Washington College of Law; Robert A. Burt, Alexander M. Bickel Professor of Law, Yale Law School; and Emily Calhoun, Professor of Law, University of Colorado.
Deborah Cantrell, Clinical Lecturer and Director of the Arthur Liman Public Interest Program, Yale Law School; Manuela Carneiro da Cunha, Professor, Department of Anthropology and the College, University of Chicago; William M. Carter, Jr., Esq., Assistant Professor of Law, Case Western Reserve University School of Law; Douglas Cassell, Director, Center for International Human Rights, Northwestern University School of Law; Anthony Chase, Center for International Studies, University of Chicago; Alan K. Chen, Associate Professor, University of Denver College of Law; Ronald K. Chen, Associate Dean for Academic Affairs, Rutgers School of Law--Newark; Paul G. Chevigny, Professor of Law, New York University School of Law; Gabriel J. Chin, Rufus King Professor of Law, University of Cincinnati College of Law; Hiram E. Chodosh, Professor of Law, Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law; Carol Chomsky, Associate Professor of Law, University of Minnesota Law School, Co-President, Society of American Law Teachers; George C. Christie, James B. Duke Professor of Law, Duke University School of Law; Michael J. Churgin, Raybourne Thompson Centennial Professor in Law, University of Texas School of Law; Kathleen Clark, Professor, Washington University School of Law; Roger S. Clark, Board of Governors Professor, Rutgers School of Law--Camden; Sarah Cleveland, Professor of Law, University of Texas School of Law; George M. Cohen, Professor of Law, University of Virginia; David Cole, Georgetown University Law Center; Melissa Cole, St. Louis University School of Law; Robert H. Cole, Professor of Law Emeritus, School of Law
(Boalt Hall), University of California at Berkeley; and James E. Coleman, Jr., Professor of the Practice of Law, Duke University Law School.
Jules Coleman, Wesley Newcomb Hohfeld Professor of Jurisprudence, Yale Law School; Frank Rudy Cooper, Assistant Professor of Law, Villanova University School of Law; Charlotte Crane, Professor of Law, Northwestern University School of Law; Cathryn Stewart Crawford, Assistant Clinical Professor, Northwestern University School of Law; Lisa A. Crooms, Associate Professor, Howard University School of Law; Jerome McCristal Culp, Professor of Law, Duke University Law School; Dennis E. Curtis, Clinical Professor of Law, Yale Law School; Molly D. Current, Visiting Assistant Professor of Law, Chicago-Kent College of Law; Harlon Dalton, Professor of Law, Yale Law School; Karen L. Daniel, Clinical Assistant Professor, Northwestern University School of Law; Thomas Y. Davies, Associate Professor of Law, University of Tennessee College of Law; Angela J. Davis, Professor of Law, American University, Washington College of Law; Ellen E. Deason, Associate Professor, University of Illinois College of Law; Judith E. Diamond, Associate Professor; Brett Dignam, Clinical Professor of Law, Yale Law School; Diane Dimond, Clinical Professor of Law, Duke University Law School; Don Doernberg, James D. Hopkins Professor of Law, Pace University School of Law; Peter A. Donovan, Boston College Law School; Michael B. Dorff, Assistant Professor, Rutgers School of Law--Camden; Norman Dorsen, Fred I. and Grace A. Stokes Professor of Law, New York University School of Law; David M. Driesen, Associate Professor of Law, Syracuse University College of Law; and Steven Duke, Professor of Law, Yale Law School.
Melvyn R. Durchslag, Professor of Law, Case Western Reserve University School of Law; Fernand N. Dutile, Professor of Law University of Notre Dame School of Law; Stephen Dycus, Professor of Law, Vermont Law School; Howard Eglit, Professor of Law, Chicago-Kent College of Law; Daniel C. Esty, Clinical Professor of Environmental Law and Policy, Yale Law School; Cynthia R. Farina, Professor of Law, Cornell Law School; Neal Feigenson, Professor of Law, Quinnipiac University; Professor Jay M. Feinman, Rutgers School of Law--Camden; Stephen M. Feldman, University of Tulsa; Barbara J. Fick, Associate Professor of Law, University of Notre Dame School of Law; Matthew W. Finkin, Albert J. Harno Professor of Law, University of Illinois; David H. Fisher, Ph.D., Professor of Philosophy, North Central College; Stanley Z. Fisher, Professor of Law, Boston, MA; Scott FitzGibbon, Professor of Law, Boston College Law School, Martin S. Flaherty, Professor of Law, Fordham Law School; Brian J. Foley, Widener University School of Law; Gregory H. Fox, Professor of Law, Chapman University School of Law, Orange, CA; Gary Forrester, Visiting Assistant Professor of Law, University of Illinois College of Law, Mary Louise Frampton, Director, Boalt Hall Center for Social Justice, University of California at Berkeley; Daniel J. Freed, Clinical Professor Emeritus of Law and Its Administration, Yale Law School; Eric Freedman, Professor of Law, Hofstra University School of Law; and Peter B. Friedman, Director of Research, Analysis, and Writing, Case Western Reserve University School of Law;
Nicole Fritz, Crowly Fellow in International Human Rights, Fordham School of Law; Joseph W. Glannon; Maggie Gilmore, Supervising Attorney, Indian Country Environmental Justice Clinic, Vermont Law School; Peter Goldberger, YLS '75, Attorney, Ardmore, PA; Phyllis Goldfarb, Professor of Law, Boston College Law School; Carmen Gonzalez, Assistant Professor of Law, Seattle University School of Law; Jonathan Gordon, Instructor of Law, Case Western Reserve University School of Law; Robert Gordon, Johnston Professor of Law and History, Yale University; Neil Gotanda, Professor of Law, Western State University; Stephen E. Gottlieb, Professor of Law, Albany Law School; Grayfred B. Gray, Associate Professor Emeritus, University of Tennessee College of Law; Suzanne Greene, Visiting Professor of Law, Chicago-Kent College of Law, Kent Greenfield, Associate Professor, Boston College Law School; Susan R. Gzesh, Director, Human Rights Program, The University of Chicago; Elwood Hain, Professor, Whittier Law School, Colonel (JAG), USAFR (ret); Louise Halper, Professor of Law, Washington & Lee University School of Law; Robert W. Hamilton, University of Texas School of Law; Joel F. Handler, University of California-Los Angeles School of Law; Hurst Hannum, Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University; Patricia Isela Hansen, Professor of Law, University of Texas Law School; Angela Harris, Professor of Law, School of Law (Boalt Hall), University of California at Berkeley; Mark I. Harrison, Esq.; and Robert Harrison, Yale Law School;
Melissa Hart, Associate Professor of Law, University of Colorado School of Law; Kathy Hartman, Assistant Dean for Admissions and Financial Aid, Vermont Law School; Lev Hartman, 381 VT Route 66, Randolph, VT 05060; Philip Harvey, Associate Professor of Law & Economics, Rutgers School of Law--Camden; Oona Hathaway, Associate Professor, Boston University School of Law; Joan MacLeod Heminway, University of Tennessee College of Law; Lynne Henderson, Visiting Professor of Law, University of California-Davis School of Law; Susan Herman, Professor of Law, Brooklyn Law School; Kathy Hessler, Case Western Reserve University School of Law; Steven J. Heyman, Professor of Law, Chicago-Kent College of Law; Tracey E. Higgins, Professor of Law, Fordham Law School, Co-Director, Crowley Program in International Human Rights; Barbara Hines, Lecturer/Director of the Immigration Clinic, University of Texas School of Law; W. William Hodes, President, The William Hodes Professional Corporation, Professor Emeritus of Law, Indiana University; Joan H. Hollinger, Visiting Professor of Law, Director, Child Advocacy Program, School of Law (Boalt Hall), University of California at Berkeley; Ruth-Arlene W. Howe, Boston College Law School; Marsha Cope Huie, Visiting Professor of Law, Tulane University; Darren Lenard Hutchinson, Assistant Professor of Law, Southern Methodist University, Deena Hurwitz, Cover/Lowenstein Fellow in International Human Rights Law, Yale Law School; Alan Hyde, Professor and Sidney Reitman Scholar, Rutgers School of Law--Newark; Jonathan M. Hyman, Professor of Law, Rutgers School of Law--Newark; Allan Ides, Loyola Law School; and, Sherrilyn A. Ifill, Associate Professor of Law, University of Maryland School of Law.
Lisa C. Ikemoto, Professor of Law, Loyola Law School; Craig L. Jackson, Professor of Law, Texas Southern University, Thurgood Marshall School of Law; Quintin Johnstone, Emeritus Professor of Law, Yale Law School; Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities, Yale Law School; David Kairys, James E. Beasley Professor of Law, Beasley School of Law, Temple University; Amy H. Kastely, Professor of Law, St. Mary's University School of Law; Harriet N. Katz, Clinical Professor, Rutgers School of Law--Camden; Lewis R. Katz, John C. Hutchins Professor of Law, Case Western Reserve University School of Law; Andrew H. Kaufman, Esq.; Eileen Kaufmann, Professor of Law, Tauro Law School; Conrad Kellenberg, Professor of Law, University of Notre Dame School of Law; Robert B. Kent, Professor Emeritus, Cornell Law School; Jeffrey L. Kirchmeier, Associate Professor of Law, City University of New York School of Law; Kimberly Kirkland, Professor of Law, Franklin Pierce Law Center; Thomas Klevan, Professor of Law, Thurgood Marshall School of Law; Alvin K. Klevorick, John Thomas Smith Professor Law, Yale Law School; Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School; Susan P. Koniak, Professor of Law, Boston University School of Law; Juliet P. Kostritsky, John Homer Kapp Professor of Law, Case Western Reserve University School of Law; Harold J. Krent, Interim Dean and Professor, Chicago-Kent College of Law; Christopher Kutz, Assistant Professor of Law, School of Law
(Boalt Hall), University of California at Berkeley; and Maury Landsman, Clinical Professor, University of Minnesota Law School.
Frederick M. Lawrence, Law Alumni Scholar and Professor of Law, Boston University School of Law; Robert P. Lawry, Professor of Law and Director, Center for Professional Ethics, Case Western Reserve University School of Law; Sylvia R. Lazos, Associate Professor, University of Missouri-Columbia School of Law; Terri LeClercq, Ph.D., Fellow, Norman Black Professorship in Ethical Communication in Law, University of Texas School of Law; Brant T. Lee, Associate Professor of Law, University of Akron School of Law; Brian Leiterk Charles I. Francis Professor, University of Texas School of Law; John Leubsdorf, Professor of Law, Rutgers School of Law-Newark; Sanford Levinson, University of Texas School of Law; Cynthia Crawford Lichtenstein, Professor Emerita, Boston College School of Law, Visiting Professor, George Washington University School of Law; Joseph Liu, Assistant Professor, Boston College Law School; Claudio Lomnitz, Professor of History, University of Chicago; Jean Love, Martha-Ellen Tye Distinguished Professor of Law,University of Iowa College of Law; John S. Lowe, George W. Hutchison Professor of Energy Law, Southern Methodist University; Edmund B. Luce, Director of Graduate Programs and Legal Writing Professor, Widener University School of Law; Carroll L. Lucht, Clinical Professor of Law, Yale Law School; Jeana L. Lungwitz, University of Texas School of Law; David Lyons, Boston University; Marko C. Maglich, Attorney, New York; Daniel Markovits, Associate Professor of Law, Yale Law School; Inga Markovits, ``Friends of Jamail'' Regents' Chair in Law, University of Texas; Richard Markovits, John B. Connally Chair in Law, University of Texas; Stephen Marks, Associate Dean for Academic Affairs, Boston University School of Law; and Jerry L. Mashaw, Sterling Professor of Law and Management, Yale Law School.
Professor Judith L. Maute, University of Oklahoma College of Law; Carolyn McAllaster, Clinical Professor of Law, Duke University School of Law; Marcia L. McCormick, Visiting Assistant Professor, Chicago-Kent College of Law; Melinda Meador, Bass, Berry, and Sims PLC, Knoxville, TN; Michael Meltsner, Visiting Professor of Law, Harvard Law School; Roy M. Mersky, Harry M. Reasoner Regents Chair in Law and Director of Research, Jamail Center for Legal Research, Tarlton Law Library, University of Texas School of Law; Frank I. Michelman, Harvard University; Alice M. Miller, J.D., Assistant Professor of Clinical Public Health, Law and Policy Project, Columbia University School of Public Health; Jonathan Miller, Professor of Law, Southwestern University School of Law; Joseph Scott Miller, Visiting Assistant Professor of Law, Northwestern University School of Law; Elliot S. Milstein, Professor of Law, American University, Washington College of Law; JoAnne Miner, Senior Lecturer, Cornell Law School; Satish Moorthy, Coordinator, Human Rights Program, University of Chicago; Margaret Montoya, University of New Mexico School of Law, Co-President, Society of American Law Teachers; Frederick C. Moss, Associate Professor of Law, Southern Methodist University School of Law; Eleanor W. Myers,Temple University, Beasley Law School; Molly O'Brien, Associate Professor of Law, University of Akron School of Law; Paul O'Neil, Visiting Professor of Law, CUNY School of Law; J.P. Ogilvy, Associate Professor of Law, Columbus School of Law, The Catholic University of America; Diane Orentlicher, American University, Washington College of Law; and Nancy K. Ota, Professor of Law, Albany Law School; Professor Daniel G. Partan, Boston University School of Law.
Teresa Gotwin Phelps, Professor of Law, University of Notre Dame School of Law; Sidney Picker, Jr., Professor of Law, Case Western Reserve University Law School; Sydelle Pittas, Esq., Pittas/Koenig, Winchester, MA; Zygmunt J.B. Plater, Professor of Law, Boston College Law School; Nancy D. Polikoff, Professor of Law, American University, Washington College of Law; Robert J. Quinn, Esq., Human Rights Program, University of Chicago; Vernellia R. Randall, Professor of Law, University of Dayton; Frank S. Ravitch, Visiting Associate Professor of Law, Syracuse University College of Law; Anthony F. Renzo, Assistant Professor, Vermont Law School; Judith Resnik, Arthur Liman Professor of Law, Yale Law School; Wilhelmina M. Reuben-Cooke, Professor of Law, Syracuse University College of Law; Annelise Riles, Professor of Law, Northwestern University School of Law; David W. Robertson, Professor of Law, University of Texas School of Law; Professor Mary Romero, School of Justice Studies, Arizona State University; Professor Michael Rooke-Ley, Co-President-elect, Society of American Law Teachers; Susan Rose-Ackerman, Henry R. Luce Professor of Law and Political Science, Yale Law School; Rand E. Rosenblatt, Professor of Law, Rutgers School of Law--Camden; Stephen A. Rosenbaum, Lecturer in Law, School of Law (Boalt Hall); University of California at Berkeley; Clifford J. Rosky, Post-Graduate Research Fellow, Yale Law School; Gary Rowe, Acting Professor, University of California-Los Angeles School of Law; Len Rubinowitz, Professor of Law, Northwestern University School of Law; and William Rubenstein, Acting Professor, University of California-Los Angeles School of Law.
David S. Rudstein, Professor of Law, Chicago-Kent College of Law; Marshall Sahlins, Charles F. Grey, Distinguished Service Professor Emeritus, University of Chicago; Richard Sander, Professor of Law, University of California-Los Angeles School of Law; Jane L. Scarborough, Associate Professor of Law, Northeastern University School of Law; Elizabeth M. Schneider, Rose L. Hoffer, Professor of Law, Brooklyn Law School; Ora Schub, Associate Clinical Professor, Children and Family Justice Center, Northwestern University School of Law; Ann Seidman, Adjunct Professor, Boston University School of Law; Robert B. Seidman, Professor Emeritus, Boston University School of Law; Jeff Selbin, Lecturer, School of Law (Boalt Hall), University of California at Berkeley; Elisabeth Semel, Acting Clinical Professor, School of Law (Boalt Hall), University of California at Berkeley; Ann Shalleck, Professor of Law, American University, Washington College of Law; Julie Shapiro, Associate Professor of Law, Seattle University School of Law; Richard K. Sherwin, Professor of Law, New York Law School; Seanna Shiffrin, Professor of Law and Associate Professor of Philosophy, University of California-Los Angeles; Steven Shiffrin, Professor of Law, Cornell University; James J. Silk, Executive Director, Orville H. Schell, Jr., Center for International Human Rights, Yale Law School; Richard Singer, Distinguished Professor, Rutgers Law School--Camden; Professor Ronald C. Slye, Seattle University School of Law; Roy M. Sobelson, Professor of Law, Georgia State University College of Law; Norman W. Spaulding, Acting Professor of Law, School of Law (Boalt Hall), University of California at Berkeley; and Christina Spiesel, Senior Research Associate, Yale Law School, Adjunct Professor of Law, Quinnipiac University School of Law, and Professor Of Law, New York Law School.
Peter J. Spiro, Professor of Law, Hofstra University Law School; Joan Steinman, Distinguished Professor of Law, Chicago-Kent College of Law; Barbara Stark, Professor of Law, University of Tennessee College of Law; Margaret Stewart, Professor of Law, Chicago-Kent School of Law; Katherine Stone, Professor of Law, Cornell Law School; Victor J. Stone, Professor Emeritus of Law, University of Illinois at Urbana-Champaign; Robert N. Strassfeld, Professor of Law, Case Western Reserve University School of Law; Peter L. Strauss, Betts Professor of Law, Columbia Law School; Beth Stephens, Associate Professor of Law, Rutgers-Camden School of Law; Ellen Y. Suni, Professor of Law, University of Missouri-Kansas City School of Law; Michael Sweeney, Esq., Eleanor Swift, Professor of Law, School of Law (Boalt Hall), University of California at Berkeley; David Taylor, Professor of Law, Northern Illinois College of Law; Kim Taylor-Thompson, Professor, New York University School of Law; Peter R. Teachout, Professor of Constitutional Law, Vermont Law School; Harry F. Tepker, Calvert Chair of Law and Liberty and Professor of Law, University of Oklahoma; Beth Thornburg, Professor of Law, Dedman School of Law, Southern Methodist University; Lance Tibbles, Professor of Law, Capital University Law School; Mark Tushnet, Georgetown University Law Center; Kathleen Waits, Associate Professor, University of Tulsa College of Law; Neil Vidner, Duke University Law School; and Joan Vogel, Professor of Law, Vermont Law School.
Rhonda Wasserman, Professor of Law, University of Pittsburgh School of Law; Mark Weber, Professor of Law, DePaul University College of Law; Harry H. Wellington, Sterling Professor of Law Emeritus, Yale Law School, Professor of Law, New York Law School; Carwina Weng, Assistant Clinical Professor, Boston College Law School; Jamison Wilcox, Quinnipiac School of Law; Cynthia Williams, Associate Professor, University of Illinois College of Law and Visiting Professor Fordham University Law School; Verna Williams, Assistant Professor of Law, University of Cincinnati College of Law; Harvey Wingo, Professor Emeritus of Law, Southern Methodist University; Stephen L. Winter, Professor of Law, Brooklyn Law School; Zipporah B. Wiseman, Thomas H. Law Centennial Professor of Law, University of Texas; Stephen Wizner, William O. Douglas Clinical Professor of Law, Yale Law School; Arthur D. Wolf, Professor of Law, Western New England College School of Law; Richard Wright, Professor of Law, Chicago-Kent College of Law; Larry Yackle, Boston University School of Law; Professor Ellen Yaroshefsky, Jacob Burns Ethics Center, Cardozo Law School, Yeshiva University; and Karen Kithan Yau, Robert M. Cover Clinical Teaching Fellow, Yale Law School and Member of the Connecticut, Massachusetts and New York State Bars.
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Procedural Safeguards for Military Tribunals
(i) That the tribunal is independent and impartial--Sources: Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol II) Part II, Art. 6, No. 2; International Covenant on Civil and Political Rights (ICCPR), Part III, Art. 14, No. 1; Universal Declaration of Human Rights (UDHR), Art. 10.
(ii) That the particulars of the offense charged or alleged against the accused are given without delay--Sources: Protocol II, Part II, Art. 6, No. 2(a); ICCPR, Part III, Art. 14, No. 3(a) and (c); Statute of the International Criminal Tribunal for former Yugoslavia (ICTY), Art. 20(3), 21(4)(a); Additional Protocol I to the Geneva Conventions (Protocol I), Art. 75(4)(a); U.S. Rules of Courts-Martial (RCM) 308; RCM 405(f)(1), (2), and (6); and RCM 602.
(iii) That the proceedings be made intelligible by translation or interpretation--Sources: ICCPR, Part III, Art. 14, No. 3(a) and (f); ICTY, Art. 21(4)(a) and (f); Geneva Convention 3, Art. 105; Implicit in Protocol I, Art. 4(a).
(iv) That the evidence supporting the conviction is given to the accused, with exceptions only for demonstrable reasons of national security or public safety--Sources: ICCPR, Part III, Art. 14, No. 1; Geneva Convention 3, Art. 105; Protocol I, Art. 75(4)(g); Universal Declaration of Human Rights, Art. 11; ICTY 21(4)(e); RCM 308; RCM 405(f)(3) and (5); RCM 405(g)(1)(B); RCM 703(f); Military Rules of Evidence (MRE) 401.
(v) That the accused has the opportunity to be present at trial--Sources: Protocol II, Part II, Art. 6, No. 2(e); ICCPR, Part III, Art. 14, No. 3(d); ICTY, Art. 21(4)(d); Implicit in Geneva Convention 3, Art. 99; Protocol I, Art 75(4)(e); RCM 804.
(vi) That the accused may be represented by counsel--Sources: ICCPR, Part III, Art. 14, No. 3(b) and (d); ICTY, Art. 21(4)(b) and (d) implicit in Protocol II, Part II, Art. 6, No. 2(a); RCM 405(d)(2); RCM 405(f)(4); RCM 506.
(vi) That the accused has the opportunity to respond to the evidence supporting conviction and present exculpatory evidence--Sources: ICCPR, Part III, Art. 14, No. 3(e); Geneva Convention 3, Art. 105; RCM 405(f)(10) and (11).
(vii) That the accused has the opportunity to cross-examine adverse witnesses and to offer witnesses--Sources: ICCPR, Part III, Art. 14, No. 3(e); ICTY, Art. 21(4)(e); Geneva Convention 3, Art. 105; Protocol I, Art. 75(4)(g); Universal Declaration of Human Rights, Art. 11; RCM 405(f)(8) and (9); RCM 703(a); MRE 611(b).
(viii) That the proceeding and disposition are expeditious--Sources: ICCPR, Part III, Art. 14, No. 3(c); ICTY, Art. 20(1), Art. 21(4)(c); implicit in Protocol II, Part II, Art. 6, No. 2(a); Geneva Convention 3, Art 105; Additional Protocol 1 to the Geneva Conventions, Art. 75(4)(g); UDHR, Art. 11; RCM 707(a) (calls for arraignment within 120 days).
(ix) That reasonable rules of evidence, designed to ensure admission only of material with probative value, are used--Sources: This is a suggestion made by Cass Sunstein in testimony before the Judiciary Cmte on 12/4/2001; it responds to section 4(c)(3) of the President's military order; see also Geneva Convention 3, Art 103; Protocol I, Art. 75(4)(a); MRE 401-403 (NOTE: protections are nearly equal to safeguards in federal civilian courts).
(x) That before and after the trial, the accused is afforded all necessary means of defense--Sources: Protocol II, Part II, Art. 6, No. 2(a); ICCPR, Part III, Art. 14, No. 3(b).
(xi) That conviction is based only upon proof of individual responsibility for the offense--Sources: Protocol II, Part II, Art. 6, No. 2(b); ICTY, Art. 21(4)(b); Geneva Convention 3, Art. 105.
(xii) That conviction is not based upon acts, offenses or omissions which were not offenses under the law at the time they were committed--Sources: Protocol II, Part II, Art. 6, No. 2(c); UDHR, Art. 11(2); ICTY, Art 7; Protocol I, Art. 75(4)(b).
(xiii) That the penalty for an offense is not greater than it was at the time that the offense was committed--Sources: Protocol II, Part II, Art. 6, No. 2(c); UDHR, Art. 11(2); ICTY, Art. 10; ICCPR, Art. 15; Protocol I, Art. 75(4)(c).
(xiv) That the accused is presumed innocent until proved guilty--Sources: Protocol II, Part II, Art. 6, No. 2(d); ICCPR, Part III, Art. 14, No. 2; Art. 15; UDHR, Art. 11(1); ICTY, Art. 21(3); Protocol I, Art. 75(4)(c).
(xv) That the accused is not compelled to confess guilt or testify against himself--Sources: Protocol II, Part II, Art. 6, No. 2(f); ICCPR, Part III, Art. 14, No. 3(g); ICTY, Art. 21(4)(g); RCM 405(f)(7); MRE 301; Implicit in Geneva Convention 3, Art 99; Protocol I, Art. 75(4)(d).
(xvi) That the trial is open and public, including public availability of the transcripts of the trial and pronouncement of judgment, with exceptions only for demonstrable reasons of national security or public safety--Sources: ICCPR, Part III, Art. 14, No. 1; ICTY,. Art. 20(4) and 21(2); Protocol I, Art. 75(4)(f); RCM 806; RCM 922; RCM 1007.
(xvii) That a convicted person is informed of remedies and appeals and the time limits for the exercise thereof--Sources: Protocol II, Part II, Art. 6, No. 3; ICCPR, Part III, Art. 14, No. 5; UDHR, Art. 10, 11; Protocol I, Art. 75(4)(i); RCM 1010.
(xviii) That a convicted person is informed of remedies and appeals and the time limits for the exercise thereof--Sources: Protocol II, Part II, Art. 6, No. 3; ICCPR, Part III, Art. 14, No. 5.; Geneva Convention 3, Art 106; Protocol I, Art. 75(4)(j) [to be informed if available]; UDHR, Art. 14; ICTY, Art 25.
Mr. LUGAR. Mr. President, I want to take advantage of the presence of the distinguished Senator from Vermont and the present chairman of the Agriculture Committee, who are the sole survivors of the agriculture debate today. This may be indicative of the kind of stamina required for this work.
It would be my hope to proceed in morning business to, in fact, give a statement about national security. I ask the Chair informally, because he has had a very long week, and I had not anticipated that he would be assuming this responsibility--nor do I wish to take advantage of that--if I may, I would like to proceed in morning business.
The PRESIDING OFFICER (Mr. Harkin). Without objection, it is so ordered.
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