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President Bush has made it abundantly clear that he regards the option of military commissions as a tool to be used only with the utmost discretion. After all, the President not only retained exclusive authority to determine who will be subject to trial by military commission-as opposed to delegating this authority-but also constrained himself by limiting the people he can designate essentially to non-citizen international terrorists. This is unlike the use of military commissions after World War II. The 1945 Order establishing military commissions for the trial of war crimes in the Pacific theater came from the pen of General Douglas MacArthurnot the President—and it stated that military commissions had jurisdiction over "all of Japan and other areas occupied by the armed forces commanded by the Commander-in-Chief, United States Army, Pacific." It delegated the decision of whom to try to "the convening authority" rather than the President. In contrast, President Bush's Order has a very narrow scope, and it ensures that decisions will be made at the very highest level of our Government. I am very much reassured by these features of the Order. And so are the American public, seven out of ten of whom believe that the Government is doing enough to protect the civil rights of suspected terrorists.

I do not mean to suggest that congressional oversight is inappropriate when the public has thought about, and accepted, an administration plan. I am strongly in favor of congressional oversight. But we should remember that the purpose of oversight is to make sure the administration is doing its job. At some point, too many partisan hearings and too much hysteria only make it more difficult for the administration to do its real job. In the Judiciary Committee alone, we are holding four hearings in 8 days. And these are multiple hearings on the same subjects. We talked about military commissions last week, we are talking about them today, and we will talk about them again with the Attorney General on Thursday.

Frankly, I think this committee would better serve the public by looking for ways to help, instead of distracting the administration, which has an enormous task on its hands and is doing a superb job under very difficult circumstances and conditions.

One obvious way we could help is to confirm the nominees languishing in this committee for important jobs, including judgeships, positions at the Department of Justice, and the Office of National Drug Control Policy. As the Washington Post-again, I might mention, not known for its membership in the vast right-wing conspiracy editorialized last week, "[flailing to hold [judicial nomination hearings] in a timely fashion damages the judiciary, disrespects the President's power to name judges and is grossly unfair to often well-qualified nominees."

Now, in light of the nominations backlog that we have, one is hard-pressed to understand the wisdom of holding hearings every other work day on whether Osama bin Laden should be able to avail himself of the intricacies of the hearsay exception in the event that he survives the bombs headed in his direction. Am I the only one who finds it ironic that, while no one questions the President's authority to instruct the military to drop bombs on his hideouts, there is a little group of outspoken critics who want to quibble over

which set of evidentiary rules the Secretary of Defense should apply in bin Laden's trial? And this is in a country where we have always been decent in protecting the rights of the accused, whether by military tribunal or not.

To those who reflexively oppose the military tribunals, I ask, do we really want to litigate in a criminal trial whether the soldiers who apprehend bin Laden should have obtained a search warrant before entering his cave? Now, that is meant to be humorous. Or whether he understood

Senator SCHUMER. We are all laughing. [Laughter.]

Senator HATCH. You should have laughed a little quicker than you did.

Or whether he understood his Miranda rights? Or whether he is not guilty by reason of insanity? He certainly is not living his religion, we will put it that way.

I know that some are less worried about bin Laden and more concerned about the reaction that our use of military commissions would engender in Europe and elsewhere around the world. Some have speculated that Spain and other countries would refuse to extradite suspects to the United States. To my knowledge, no country has made such a refusal yet. And any such refusal, if made without reviewing the actual rules and regulations that will govern our military commissions, would be based on speculation and distrust rather than facts. When the United States has criticized other countries for unfair military courts, it was because they were unfair, not because they were military courts.

Now, I want to turn to the constitutionality question that I mentioned a minute ago. Despite the articulate explanation this committee received last week from Assistant Attorney General Chertoff, some of my colleagues still question whether military tribunals are, in fact, permitted by the Constitution. The fact is that the Supreme Court has repeatedly upheld the constitutionality of using military commissions to prosecute individuals charged with crimes under the law of war. As the Supreme Court has explained, "[s]ince our Nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war."

Furthermore, contrary to recent suggestion, military tribunals can be and have been-established without further congressional authorization. Because the President's power to establish military commissions arises out of his constitutional authority as Commander-in-Chief, an act of Congress is unnecessary. Presidents have used this authority to establish military commissions throughout our Nation's history, from George Washington during the Revolutionary War to President Roosevelt during World War II. Congress, for its part, has repeatedly and explicitly affirmed and ratified this use of military commissions. Article 21 of our Code of Military Justice, codified at section 821 of Title 10 of the United States Code, expressly acknowledges that military commissions have jurisdiction over offenses under the law of war.

Now, I would like to also add-and I think it may be important to do so that I think underlying part of the reason why the President wants to have military commissions in the case of Al Qaeda

terrorists in particular-and who knows whether he will decide to establish them or not, but he has the right to, in my opinion. But one reason that he wants to do that is to protect national security interests. Who wants to serve on a jury trying Osama bin Laden or Al Qaeda terrorists? Or who wants to be in the hotel that is housing those jurors if they are sequestered? Or who is going to protect those jurors' families? Or who is going to protect the community in which those trials are being held?

We shouldn't pussyfoot around here. There are some things that literally are to be considered. Others have said, well, the World Trade Center trials were held, and they went off just perfectly. Yes. Well, an awful lot of the architecture of the World Trade Center buildings was disclosed in those trials, as I understand, giving the Al Qaeda people even more ability to destroy those towers and to devastate our whole country, and the world, as a matter of fact.

And who knows what else could be done by people who don't abide by even the rules of war, who don't abide by morality and decency, who distort their own religious principles to oppress their own people, and who have no qualms about using weapons of mass destruction if they can get their hands on them?

So I can understand why the President feels the way he does. I can understand why so many people in this country feel the way they do under these circumstances.

In closing, Mr. Chairman, I want to thank you again for convening this hearing. I have criticized having so many of them, but I also know that you have, if anybody in this body has the right, to call a hearing like this, you certainly do. Coming from New York City and representing your State, you have done a magnificent job in doing it. So I just want you to know that this hearing is an important hearing. I think you have a right to call it. I just don't think we need all of them, and I don't think we need to take all the time that we do. But this is an important hearing for the truth about these issues to be made public, and I look forward to hearing from our witnesses. And I know there will be some who will disagree with some of the things that I have said, and I respect that and will respect them. But this is a very trying time for our country, very, very difficult time for the President and those who are working with him. And we need to get behind him, and we need to quit worrying so much about whether or not this is going to be fair since I can't imagine any military tribunal, the same similar tribunals in a sense that try our own young men and women when they commit crimes, I can't imagine them being unfair. And I have to say that since our young men and women are subjected to these rules, I find it a little bit difficult to see why we should argue why Osama bin Laden deserves more constitutional protection than they do.

Thank you, Mr. Chairman.

Senator SCHUMER. Thank you, Mr. Hatch.

Just one thing. Let the record show this is the first hearing that is being held on this subject. There was one last week on all of the subjects. The one Thursday is on all. There has been none on this subject, and I think if you are right, then you would welcome such a hearing because all the questions will come out. The witnesses are chosen down the middle. You chose as many as we did. And

sunlight is great in producing good product. And no one is trying to delay it. No one is trying to impede the President's role. I am of an open mind on this issue, as you know. And you comparing these to courts-martials, finding out exactly what the administration has in mind, fleshing out the differences, that is our job. It is not our job to impede. It is our job to make our country work best. Senator HATCH. I agree.

Senator SCHUMER. And that is what we are doing here. And I think anybody who thinks we shouldn't have one hearing devoted to this subject, an important subject, doesn't understand the process. I don't think you are saying that. You welcome this hearing. Senator HATCH. No, no. I welcome the hearing. Senator SCHUMER. But that is our job.

I would like to call on my ranking member, a gentleman I have worked very closely with, and it has always been a pleasure to work with Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA

Senator SESSIONS. Thank you, Chairman Schumer. As Senator Hatch noted, I know that you feel deeply about civil liberties, and I know you feel deeply about the terrorists who attacked your city, and no one feels more personally the pain of the families than you, and you have done an outstanding job—

Senator SCHUMER. Thank you. I appreciate it.

Senator SESSIONS. -in defending the interests of New York in so many ways, some of which are made public, some of which are not. So I think it is fine and good to have hearing like this to discuss these issues, particularly in light of some of the extreme, I have to say, charges that have been made about the procedures as being unprecedented and secret and unfair and unjust and unconstitutional and contrary to law. So I think that is what we ought to do today. Let's put it out on the table. To the extent to which someone can improve what goes forward, I would be pleased to hear it.

I was also pleased that Secretary Rumsfeld on "Meet the Press" Sunday said he has not completed his view of how the procedures ought to be handled, and he welcomed debate and input into how to make them better. I am certain he has no interest in convicting someone of a war crime that is not guilty of a war crime, and I would say, as a former prosecutor and also as a former JAG officer for a few years in the Army Reserve, that our military justice system is a good system, and the officers and enlisted people who participate in courts-martials and other tribunals and commissions in the military are men and women of integrity. They are men and women of personal discipline. They follow rules and law as given to them. And F. Lee Bailey, I believe, as I recall, has repeatedly praised military justice as being fair justice. And somehow to suggest because a trial is going to be tried by military officers or military people that this is inherently unfair is not so.

I think the proof is in the pudding. The proof is whether or not justice is occurring and does occur. And it is important for this great Nation, the beacon of liberty and the symbol of law in the

world, the rule of law, that we conduct these hearings fairly, and I am confident that that will occur.

I will offer my full statement into the record. It deals with many of the details of the issues.

Senator SCHUMER. Without objection.

Senator SESSIONS. And I know Senator Hatch has made a number of the points that I would have made had he not been here, most eloquently also. But let me just mention what Justice Jackson, who was the leader at the Nuremberg trials, said. And I think he comes right down to this point. And let me also note, I am not aware throughout history that people who have been involved in violations of the rules of war or combatants have been tried in civil courts normally. I am just not aware that that has ever occurred. I am not sure that there has ever been an incident where an illegal combatant in a wartime situation has been tried in civilian courts. Perhaps it is true, but normally not. But this is what Justice Jackson said at the Nuremberg trials, which was not a normal civil trial, for the Nazi war criminals. He said, "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."

And just as history judged the Allied powers by how they conducted the Nuremberg trial, so history will judge America by how we conduct the trials of these terrorists. We do not want history to conclude that America, through these military commissions, rendered victor's justice, but real justice. And, you know, I think that MacArthur, he just did these trials with very little supervision. But because he did them right, we have a new relationship and better relationship with Japan today. Some of those things simply had to be done. Eisenhower did commissions in Europe, and it has strengthened our relationship, the way they were conducted. And I believe when this is concluded, likewise our relationships with the people in the Middle East, their respect for American justice will be enhanced. But I must say that we do not need to bring them all back to the United States to make our courtrooms a target for all those hatreds and venom that may be still out there. I think that would be unwise. And I would also note that you can't try these cases consistently even with certain rules that allow the protection of certain secrets without the terrorists' being able to learn a great deal more about how our systems of intelligence and surveillance and electronics work. And I think that would be dangerous, too.

Thank you, Mr. Chairman. I look forward to this excellent panel of witnesses.

[The prepared statement of Senator Sessions follows:]

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA I commend Senator Schumer for holding this hearing to examine the use of military commissions to try terrorists who commit war crimes against American citi

zens.

It is a good and healthy thing to debate and discuss every aspect of these procedures. I welcome that. So has Secretary of Defense Rumsfeld. I would be surprised

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