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Kennedy on Hamdan V. Rumsfeld

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Kennedy on Hamdan V. Rumsfeld

Statement before the Senate Judiciary Committee

"Almost five years ago, the Administration set off on a disastrous course that has made America less secure at home and more hated in the world. It failed to recognize that America's strength and even our security depend on respect for the rule of law and the founding principles of the Constitution. And it found a Republican Congress all too willing to rubber-stamp its arrogance. Finally, in no uncertain terms two weeks ago, the Supreme Court delivered a well-deserved rebuke for the Administration's abuses at Guantanamo.

The tribunals and commissions at Guantanamo are fundamentally unfair and do not give the detainees a genuine opportunity to have the validity of their detention decided. We've locked people away for years, without creating an adequate process to distinguish who belongs in detention and who should be released. Detainees have been held for year after year under inhumane conditions, and we've failed to provide an effective way to determine whether they're guilty of anything. Those the Administration sought to convict of particular offenses were subjected to trial by kangaroo courts that the Supreme Court rightly rejected as an unconstitutional abuse of power.

The Administration sought to create a place that was literally beyond the law - beyond judicial review, beyond the Geneva Conventions, beyond our sense of right and wrong.

Perhaps now, endless detention without safeguards will finally be corrected. We can end the abuses but it will be far more difficult to restore our reputation in the world.

The use of torture at Abu Ghraib and the operation of secret prisons have cost us dearly in loss of international respect. All of us are proud of the courage and commitment of the men and women of our armed forces. But they tell us that the abuses and torture we have committed are making their mission far more difficult to accomplish.

The United States should treat detainees as we would want captured Americans to be treated. Yet, over the past five years, the Administration has taken us down a different path, violating the well-established checks and balances of the Constitution. On June 29th, in Hamdan v. Rumsfeld, the Supreme Court said the President had gone too far. As Justice Breyer wrote "Congress has not issued the executive a blank check."

The Court's decision is a victory for the rule of law. Following this landmark decision, we have the opportunity to shed more light into the legal black hole at Guantanamo Bay But, at the outset, we should make a few things clear. The decision is not a "get out of Guantanamo free" card for any of the detainees. No one suggests that any person engaging in terrorism should not be held accountable as a result of this decision.

The Supreme Court made it clear that the President can prosecute terrorists. The President already has all the necessary authority to proceed with trials of war criminals if he does it in accord with the Uniform Code of Military Justice and the Geneva Conventions.

But instead of using that well-established authority to prosecute detainees quickly and fairly, the Administration created a system of ad hoc military commissions that led to extended litigation and the Supreme Court's ruling. As a result, more than 4 years later we have not yet successfully prosecuted a single detainee, and Guantanamo has become an international embarrassment.

Under traditional laws of war, POW's may be held until the end of the conflict. Certainly none of us wants to impose a standard that would free dangerous detainees to return to acts of terror. That will be one of the major challenges we face as we move forward.

The path ahead will speak volumes about our dedication to the rule of law and the Constitution - and it will have significant consequences for our national security. If our future actions are consistent with our nation's long-held values, then perhaps this outrageous chapter will finally come to an end.

As we deliberate about these serious matters, we should take heed of the courageous words of Alberto Mora, the former Navy General Counsel. He urged us to care about the fate of these detainees because "a tolerance of cruelty will corrode our values and our rights and degrade the world in which we live. It will corrupt our heritage, cheapen the valor of the soldiers upon whose past and present sacrifices our freedoms depend, and debase the legacy we will leave to our sons and daughters."

Congress should work with the Administration to ensure a realistic process for treating detainees that meets the requirements of the rule of law.

As Justice Kennedy wrote in his concurring opinion in Hamdan, "a case that may be of extraordinary importance is resolved by ordinary rules." There is no question that the treatment of terrorists is of extraordinary importance, and the obvious starting point is the ordinary rules of our long-standing military justice system.

I welcome this hearing as an opportunity to consider how we should move forward, and what we in Congress can do to make sure that there is accountability and swift justice for terrorists.

I commend the Chairman for calling this hearing. It's a step forward for Congress to reclaim its constitutional responsibilities and to assert greater Congressional oversight over these serious matters."

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