Kennedy on Amending War Crimes Act
"It is important to make sure that the Justice Department has all of the options it needs to hold terrorists accountable in our criminal justice system. I welcome this hearing and I hope that we will proceed with deliberation and care in making any changes in the War Crimes Act of 1996.
That Act was originally introduced by conservative members of the House of Representatives and passed by a Republican Congress. It is not a complex law. In less than three-hundred words, it makes it illegal for "a member of the Armed Forces of the United States or a national of the United States" to commit a war crime, and criminalizes war crimes against Americans. This brief law speaks volumes about the rule of law and what America stands for.
Basic American ideals did not change after 9/11, or become less relevant. America did not resolve to set aside the Constitution or the rule of law after those vicious attacks. We did not decide as a nation to stoop to the level of terrorists.
In fact, we have been united in our belief that an essential part of winning the war on terrorism and protecting the nation for the future is safeguarding the ideals and values that America stands for here at home and around the world.
That is why, time after time, government lawyers, military officials, and the American people have been shocked by the Administration's eagerness to abandon America's basic values, in the misguided belief that the end justifies the means. The result has been disastrous.
The Administration brazenly claimed that detainees in the Afghanistan War were not subject to the basic human rights protections of the Geneva Conventions. Despite strenuous objections from Secretary of State Colin Powell, the Administration arrogantly refused to follow the law in this area, and our actions have wreaked havoc with our moral standing in the world and made the war on terrorism harder to win.
Its lawless policies backfired again when the Administration claimed the inherent power to try detainees in military commissions outside of established legal structures. Instead of cooperating with Congress and attempting to operate within the rule of law, the Administration pressed ahead with its irresponsible unilateral approach.
Not a single conviction was obtained under the military commissions, and the Supreme Court has now unequivocally declared that the commissions were not authorized by Congress and do not satisfy Common Article 3 of the Geneva Conventions.
The Administration even attempted to narrow the definition of torture. The Bybee Torture Memorandum, issued in August 2002, took the outrageous position that torture was limited to conduct that caused pain equivalent to death or organ failure. That indefensible position was adopted as official executive policy over the strong and virtually unanimous objections of career military lawyers, who believed it was illegal and unnecessary, and would be harmful to our own troops. When this secret memo finally, came to light, public outcry forced the Administration to repudiate it. Yet when Congress passed the Detainee Treatment Act prohibiting cruel, inhuman and degrading treatment of detainees, the President signed the Act but issued a signing statement indicating he would ignore the law whenever he felt like it.
In the Hamdan case, the Supreme Court clearly reaffirmed the applicability of the Geneva Conventions to the detainees. It rejected the President's unilateral military commissions, and emphasized Congress's important role in maintaining the rule of law.
An essential part of winning the war on terrorism and safeguarding the country for the future is to protect the ideals that America stands for here at home and around the world. It has taken several years, and in some instances Supreme Court action, to force the President to comply with the rule of law and to respect those ideals.
We must make sure that the War Crimes Act remains intact, as a bulwark against future abuses and as a signal to the world that we intend to reclaim our long-standing role as leaders in promoting human rights protections here and around the world."