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“MORNING BUSINESS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S2474-S2477 on March 10, 2005.
The publication is reproduced in full below:
MORNING BUSINESS
Mr. McCONNELL. Mr. President, I ask unanimous consent that there now be a period for morning business with Senators permitted to speak for up to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, I rise for two purposes. The first is to draw attention to a recent program at the Supreme Court on the work of Justice Robert Jackson and Thomas Dodd, the father of Senator Christopher J. Dodd, dealing with the International Military Tribunals at Nuremberg. I was happy to read the remarks of my colleague, Senator Dodd, at the event, and I was interested to find that many of the conclusions he draws from his father's experiences remain essential to our conduct of international justice today--and, unfortunately, they are all too often forgotten.
I would first echo the remarks made by Senator Dodd and salute the extraordinary work performed by Justice Robert Jackson and Thomas Dodd in their roles as the U.S. Chief Prosecutor and Deputy Prosecutor, respectively, at Nuremberg over 50 years ago.
The Nuremberg Tribunal taught us many lessons: that even in the depths of war, justice is not blind; that those who practice terror, oppression, hatred, and mass murder will be punished. Perhaps equally important, however, was the notion that they should also be afforded a trial. Indeed, the United States committed itself to overcoming the passions of the moment and reaffirming the rule of law. I believe this action set an important precedent that is still applicable today.
Critically, the Tribunal also helped record the horrific crimes of the Nazi regime so the whole world would see the brutality and understand the depravity of those unimaginable acts.
Unfortunately, crimes against humanity have occurred since the Nuremberg Tribunals, and they continue to occur today in places such as Darfur in Sudan. I believe that it is again necessary to remind ourselves of the important lessons learned over 50 years ago when Justice Robert Jackson and then Thomas Dodd--soon to be Senator Thomas Dodd--brought before the world the evidence of Nazi atrocities and said, ``This cannot stand.''
I ask unanimous consent that the remarks of Senator Dodd at the Supreme Court on February 15, 2005, entitled, ``Justice Served, Lessons Learned: Robert Jackson, Thomas Dodd and the Nuremberg Trials,'' be printed in the Record following my comments here today.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. BIDEN. Mr. President, I encourage my colleagues to take the time to read this speech and consider this important message and its application today.
Exhibit 1
Justice Served, Lessons Learned: Robert Jackson, Thomas Dodd, and the
Nuremberg Trials
It's a privilege to be with you in the Supreme Court Chamber, where cases that have changed the course of our nation's history have been argued and decided.
As a United States Senator, it's not often that I make my way across the street to this building and to this branch of government.
Two years ago, I was here to observe oral argument in Nevada Department of Human Resources v. Hibbs. That case considered the constitutionality of the Family and Medical Leave Act. I was interested because I authored the Family and Medical Leave Act in the Senate.
The bill had survived two Presidential vetoes and had taken seven years to become law. But in this institution, these facts were of little consequence. Nothing is quite as humbling as Justices deciding whether or not to strike down a law you labored over for years. I was relieved when the Court, by a margin of 6 to 3, upheld the Act.
But that visit, and others I've made over the years, prompted me to think about the differences between the Senate and the Supreme Court.
Senators show up to work in suits; Justices wear robes.
Senators are under the constant scrutiny of television cameras; Justices have somehow managed to keep them out of this Chamber.
And, of course, Senators have to run for re-election every six years; Justices of the Supreme Court have the best job security in the world.
So it's understandable why no fewer than 13 United States Senators later served on the Supreme Court. That number includes three Chief Justices--Salmon Portland Chase, Edward Douglass White, and Oliver Ellsworth of Connecticut.
I tried to comfort myself by finding what I assumed would be an equally long list of Justices who resigned their seats on the Court for the honor and privilege of serving in the U.S. Senate. But that list was exactly one name long.
That lone individual, I discovered, was David Davis, U.S. Supreme Court Justice, and later Senator from Illinois. He was appointed to the Court by Abraham Lincoln in 1862, and served here for 15 years before resigning in 1877 when he was elected a Senator by the Illinois state legislature.
It should be noted, though, that the U.S. Senate wasn't his first choice. He was a candidate for the presidential nomination five years earlier in 1872. He sought the nomination of what was then known as the ``Liberal Republican'' party. Some might suggest it was that characteristic that would make him most unique today.
I'd like to recognize, of course, Justice Souter, who has joined us this evening. And though he isn't here today, I'd also like to recognize Chief Justice Rehnquist.
Justice Rehnquist is a wonderful student of history who has done so much to educate our nation and the world about this unique institution. And as I'm sure many of you know, from 1952 to 1953 he served as a law clerk for Justice Robert Jackson.
Last month I had the honor of participating in the inauguration of President Bush. I don't think anyone watching the ceremony on that day could fail to be moved by the courage and fortitude displayed by Chief Justice Rehnquist. I think I speak for everyone here, and countless others, as well, in wishing him well this evening.
I'd like to thank Barrett Prettyman of the Supreme Court Historical Society for his kind introduction, and I'd like to thank Professor John Barrett for his historical notes as well.
I'd also like to thank Greg Peterson of the Robert H. Jackson Center for his remarks, and for the invitation to speak to you this evening. And I'd like to welcome members of the Jackson family who have joined us this evening.
If Nuremberg was the most profound experience that influenced my father's life, there were few individuals whose words and ideas carried greater weight with my father than those of Robert H. Jackson.
Justice Jackson was truly an extraordinary man whose life's journey took him from a farmhouse in upstate New York, to the U.S. Department of Justice, where he served as Solicitor General and Attorney General, to the Supreme Court, to a courtroom in Nuremberg, Germany. Following Nuremberg, he returned to this very chamber where, less than five months before he passed away, he and his eight colleagues voted to end racial segregation in schools across our land.
Robert Jackson graduated from neither college nor law school.
And prior to his appointment to the Supreme Court, he had never served as a judge. Yet he became one of the most respected jurists of his time, one known for his thoughtfulness, his fairness, his courage, and his eloquently-written opinions. He was an ardent defender of the freedoms articulated in our nation's Bill of Rights.
Of particular relevance today, Justice Jackson defended these freedoms even during times of war, and even when he was at odds with many of his fellow justices. He was one of only three justices to dissent in Korematsu v. United States, which allowed the detention of Japanese-Americans in internment camps during World War II--a decision we now regard as a stain on our nation's historical commitment to freedom and justice.
Most of all, Justice Jackson was committed to promoting and enforcing the rule of law, not only here in the United States but around the globe, as well.
Having witnessed the horrors of Nazi Germany, he had a deep and abiding belief that the law is humanity's strongest and noblest weapon against tyranny and oppression.
We gather here this evening two days after the 113th anniversary of Justice Jackson's birth, and just a few months after the 50th anniversary of his passing on October 9, 1954.
It's fitting, as well, that we assemble here two weeks after the 60th anniversary of the liberation of Auschwitz.
More than any other events, the liberation of Auschwitz and the Nuremberg trials were the two events that laid bare before the entire world the horrors committed by the Nazi regime.
At liberation, the Western world saw, for the very first time, the gas chambers, the cattle cars, and the crematoria. They saw gruesome piles of corpses, and the emaciated few who had survived the largest and deadliest of Hitler's death camps. At Nuremberg, the war and the Final Solution were painstakingly and meticulously documented and recorded so the existence of these horrific events would never, ever be in doubt.
With each passing day, there remain fewer and fewer of those who can personally bear witness to the atrocities of the Nazi regime. As a result, our generation's responsibility becomes even greater--to ensure that the lessons we learned six decades ago do not fade away into the mist of history.
This responsibility was one that my father took very, very seriously--and it was reflected in how he raised his six children. From a very early age, he would tell us about Adolf Hitler and Heinrich Himmler, and describe places like Auschwitz, Buchenwald, and Dachau.
My father believed firmly that the value of the Nuremberg experience would not only be in the individual sentences meted out to the named defendants--but, in a larger sense, in the legacy the trial would leave to future generations.
In hindsight, some might think it was inevitable that nations like ours would judge criminals like the Nazis according to the rule of law. In reality, there was great debate, both here in the United States and among our allies, over how to handle the Nazi leaders.
We know today that as many as four Supreme Court Justices, and many others including the powerful Senator from Ohio, Robert Taft, felt that the trials at Nuremberg would be a case of ex post facto judgment, and would therefore be illegal under our own Constitution. The Chief Justice at the time, Harlan Stone, called Nuremberg a ``high-grade lynching party.''
A great many in our nation and around the world advocated a different treatment for captured Nazi officials--one that had long been practiced by nations victorious in war: summary execution. Winston Churchill was said to have supported such a policy.
Why, so the argument went, should we show any mercy to these criminals--men who were responsible for the ruthless slaughter of six million Jews, and five million other innocent men, women, and children?
Men who razed to the ground entire villages and towns and massacred those who lived in them.
Men who launched an aggressive war that eventually claimed over 54 million lives, and turned the European continent into a mass graveyard.
The argument was a compelling one. But a different one would win the day. That case was the one advocated by men like Justice Robert Jackson and a young lawyer named Thomas Dodd. These two and others believed that the best way to judge these crimes against humanity, and to deter future crimes, would be a fair, legal trial.
They insisted on the rule of law, rather than the rule of the mob.
And so in the summer of 1945, Justice Jackson assembled not a team of executioners, but a team of legal professionals who would meticulously use the Nazis' own documents, records, and testimony to prove their guilt. My father was one of the men he chose to be on that team.
During his fifteen months at Nuremberg, my father wrote daily letters to my mother. These beautifully written letters always began with the words ``Grace, my dearest one.'' They fill up this volume I hold in my hand--and a second volume of equal length.
I had no idea that these letters even existed until the early 1990's. Before reading these letters I, arranged them in chronological order. I finally completed this long process in the summer of 1995.
Without any prior awareness, you can imagine my shock when on the evening of July 28, 1995, I sat down to begin reading the letters and realized that the first letter to my mother was written on July 28, 1945--50 years earlier, to the day.
My father arrived in Europe on that day with mixed feelings. He knew that he had an opportunity to be part of a historic occasion. But he was reluctant to leave my mother and their children. I was only a year old at the time--and a very active child according to my mother. Sometimes I wonder if I was the reason my father decided to go to Nuremberg.
Ultimately, the decision was made to see the job through. As he explained it, ``Sometimes a man knows his duty, his responsibility so clearly, so surely, he cannot hesitate--he dare not refuse it. Even great pain and other sacrifices seem unimportant in such a situation. The pain is no less for this knowledge--but the pain has a purpose at least.''
He threw himself into a job he expected would last only a few months. In July 1945, this 38-year-old attorney had no idea that he would be promoted from staff counsel to trial counsel, then to senior trial counsel, and then to Executive Trial Counsel--the deputy prosecutor for the United States.
The Nuremberg trials themselves were an absolutely massive undertaking, with so many questions that had to be answered:
Who would be the judges?
Who would be the lawyers?
Would the defendants be tried together or separately?
Would the trials be conducted under American or European legal customs?
Would they be military or civilian trials?
And perhaps the most pressing practical question: Where would the trials be held?
My father, like many, expressed reservations about holding the trial in Nuremberg. The city, he said, was ``probably the worst in Germany'' in terms of destruction. He suggested that Heidelberg, which had survived the war essentially intact, would have been a better alternative.
But for reasons of principle--if not practicality--he knew that Nuremberg was the right choice. It was, after all, Nuremberg where the Nazis met on September 10, 1935 to codify into law their regime of oppression, terror, and hatred. And so it was totally fitting that in Nuremberg, these Nazis were brought to justice.
My father's ambivalent outlook towards his participation in the trial changed dramatically on August 14th, 1945. On that day, he and his fellow prosecutors began interrogating prisoners. He described it as ``a day I shall never forget,'' and the day that followed as ``the most fascinating day of my life.''
From August through November 1945, my father spent much of his time face to face with some of the most vital cogs in Hitler's murderous Nazi machine. William Keitel. Hans Frank. Rudolph Hess. Hermann Goering. One by one, each of them would do his best to deflect blame and to deny. My father remarked that ``It would be relieving to hear one of them admit some blame for something. They blame everything on the dead or missing.''
Throughout the course of the investigation and trial, my father became one of Justice Jackson's closest associates--and one of his closest friends, as well.
There's no question that my father viewed Justice Jackson as much more than a professional colleague. ``I am proud of my association with him,'' he wrote, ``and even more proud of his friendship.''
My father admired Jackson greatly for his keen intellect, his quiet dignity, and for his steadfast dedication to seeing the trial through to the end. In a letter he wrote to Justice Jackson's son on the occasion of the Justice's passing in 1954, my father called him ``one of a very few great men whom I have been privileged to meet in my lifetime.''
I will not go into much detail discussing the proceedings of the trial itself. Much of the trial was actually fairly tedious. For the most part, anyone expecting tearful admissions of guilt was sorely disappointed.
My father, for his part, presented several aspects of the prosecution's case, including those on concentration camps, on economic oppression, and on slave labor. He cross-examined numerous witnesses, including six of the defendants. Four of those defendants were ultimately sentenced to death. The other two served lengthy terms in prison.
For my father, though, Nuremberg was about much more than the defendants, the evidence, and the sentences. It was about the opportunity, as he put it, ``to write a record that will mark a new point in man's relation with man.''
My father returned from Nuremberg with a deep commitment to the rule of law and its role in upholding the basic human rights and human dignity of every man, woman, and child.
That commitment is the reason why--as a Congressman and a Senator--he was such a staunch supporter of the civil rights movement. It's the reason he was such an ardent opponent of Communism. And it is the reason why he embraced bold new efforts to eliminate poverty in our nation and throughout the world.
My father also left Nuremberg as an ardent believer in the need to create and use law to preserve and promote human dignity.
Nuremberg was essentially a trial without precedent. As I mentioned earlier, when Justice Jackson and others were developing the guidelines for the Nuremberg trials, there was a great deal of debate and disagreement over the legality of the proceedings.
Justice Jackson spent a great deal of time arguing why, in fact, there was legal precedent in international law for the crime of waging aggressive war.
But beyond those legal arguments, there was another, far more fundamental point--a point that Robert Jackson and my father shared. That the crimes committed by the Nazis were so heinous, so unthinkable, that they violated the basic rules by which all of humanity must abide.
As Justice Jackson said in his opening statement, ``The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated.''
This idea of a natural law, rooted in basic standards and norms of human behavior, was a powerful argument in favor of the Nuremberg trials. Perhaps no document embodies the idea that such basic standards exist more than our own Declaration of Independence, which affirms that ``all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these rights are life, liberty, and the pursuit of happiness.''
Natural law was a concept for which my father was a strenuous advocate. I can remember a story he told me about a paper he wrote at Yale for a professor of his, Harold Lasky, a renowned socialist. In the paper, my father argued passionately in favor of natural law theory. When he got the paper back, a note was written on the front page: ``I disagree with everything you have written. A Plus.''
The Nuremberg trials' lasting legacy, my father believed, would be in international institutions that could punish crimes against humanity, and more importantly, deter those crimes in the future.
As he put it, ``By a declaration of criminality against these organizations, this tribunal will put on notice not only the people of Germany, but the people of the whole world. Mankind will know that no crime will go unpunished because it was committed in the name of a political party or a state; that no crime will be passed by because it is too big; that no criminals will avoid punishment because there are too many.''
Regrettably, my father's and Robert Jackson's vision has not yet been fully realized.
Over the last six decades, we have not witnessed the level of horrific destruction and carnage perpetrated by the Nazis. But we have seen, time and again, terrible crimes against humanity in places like Cambodia, Iraq, Bosnia, Rwanda, and today in the Darfur province of the Sudan.
Tragically, many of the individuals involved in these crimes--people like Joseph Stalin, Pol Pot, and Idi Amin--were never brought to justice. In some of these cases, the world did eventually create tribunals--but always, like Nuremberg, temporary, ad hoc courts that were established after the fact.
To truly be called effective, a court must not simply punish the guilty, then disband. It must serve as a permanent reminder to any potential criminals that they, too, will be held accountable. Such a court can not only punish crimes--it can deter them.
In my view, there is only one kind of institution that can ensure the kind of accountability that can prevent future war crimes--and that is a permanent court empowered to indict, prosecute, and judge international criminals.
After many, many years of effort, the International Criminal Court came into existence on July 1, 2002. Unfortunately, rather than lend its support to this effort, the United States has walked away from it.
I'm aware that there are complex issues that need to be resolved regarding our nation and the International Criminal Court. But I strongly believe that our nation's interests, and the world's interests, would be far better served if we worked to address those issues rather than abandoning the entire process.
What, after all, does it say about a nation that prides itself in upholding freedom, justice, and human rights when it simply disengages itself from an institution whose goal is to promote those values? And what does it say about an institution's power to bring criminals to justice when the most powerful nation in the world refuses to play a part?
The tragic events in Darfur today represent exactly the kind of situation in which people like my father and Robert Jackson envisioned international courts playing a prominent role. It is my hope that the current administration will see the Darfur genocide as an opportunity to participate in this institution in some way, rather than simply standing on the sidelines. Otherwise, the cry of ``never again'' will ring tragically hollow.
There is another legacy of Nuremberg that is just as powerful as its role in the development of international law. As I mentioned earlier, the decision to hold a trial at Nuremberg--rather than summary executions--was not an easy choice.
We rejected the certainty of executions for the uncertainty of a trial. We turned away from violence that was certainly within our ability, and, many would argue, within our right.
But what we learned is that our nation became stronger, and more respected, because we took the course that we did.
At the heart of that decision was the idea that this nation will not tailor its eternal principles to the conflict of the moment--and the recognition that if we did, we would be walking in the very footsteps of the enemies we despised.
This is a principle I believe we would all do well to remember today.
This past year, we all were horrified at the images and stories of abuse of prisoners held in places like Abu Ghraib in Iraq and Guantanamo Bay, Cuba.
The abuse itself was shocking. In my view, though, even more troubling are the comments on this issue that we've heard from some who occupy positions of great power in our government.
Legal justifications for the use of torture by American troops;
For turning over individuals to other nations known to torture detainees;
And, perhaps most egregiously, legal justifications that would explicitly exempt any executive branch official from prosecution for torture ``if they are carrying out the President's Commander-in-Chief powers.''
Sixty years ago at Nuremberg, the United States and our allies considered the defense
``I was just following orders'' to be so cowardly that it was prohibited under the rules of the trial.
Perversely, there are some who consider that defense acceptable for Americans today.
The proponents of these rationalizations tell us that we are living in different times.
That we are facing enemies who show blatant disregard for human life, and whose organizations transcend international borders.
As a result, the argument goes, we must re-evaluate certain conventions and practices that we have long respected.
I wonder how men like Robert Jackson and my father would respond to these arguments. Would they be swayed by them? Would they be persuaded somehow that the followers of Osama bin Laden and Saddam Hussein are fundamentally different from the despicable and depraved defendants who swore allegiance to Adolf Hitler?
Would these men, who prosecuted the Nazis based on testimony and documentary evidence, be heartened by the argument that the best responses we can muster against evil today are attack dogs and water-boarding?
I truly, truly think not. On the contrary, I believe that Robert Jackson and my father would be tremendously disappointed and saddened at some of the actions taken by Americans on behalf of our nation--and by some of the official legal arguments made in support of those actions.
I believe that Robert Jackson and Thomas Dodd would see these actions as a reflection of a government that has turned away from the lessons of history and stepped back from the very values of due process and equal justice that we expect of others worldwide.
Is the threat of international terrorism a dangerous one? Unquestionably. But we cannot allow that danger to compromise bedrock principles which have stood since the birth of our nation--values like the right to be free from torture or from indefinite detention without a charge.
We enshrined these values in our Constitution not simply because we believe Americans are entitled to them. We did so because they affirm a basic sense of human dignity in each and every man and woman. And because we, as a nation, are committed to upholding that dignity--even if others do not.
If we cavalierly toss aside those values in response to a particular enemy or threat, it is not our enemies, but we who will pay the ultimate price.
As Justice Jackson said at Nuremberg, ``we must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. ``
A century and a half ago, in his second State of the Union address, Abraham Lincoln said that in giving or denying freedom to slaves, ``We shall nobly save or meanly lose the last, best hope of earth.''
The issue then was how our nation treats the enslaved. Sixty years ago, the question was how to treat Nazi war criminals. Today, we face the same choice with regard to the way we treat international terrorists.
If we heed the example set at Nuremberg by people like Robert Jackson and Thomas Dodd, if we treat our enemies according to our standards--not theirs--we feed the flame of liberty and justice that has rightly led our nation on its journey for these past two and a quarter centuries.
And we set a shining and lasting example for a true global community--one grounded in the principles of justice, freedom, and peace.
And we live up to the great memory of Robert Jackson and of a young counsel named Thomas Dodd.
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