"We Need to Stand Up for our Well-Established Legal Traditions and Values"
Statement by Senator Edward M. Kennedy at Senate Hamdan Hearing
"Our Constitution lays out a careful system of checks and balances. That reflects our respect for the rule of law and the founding principles of fairness and justice. In Hamdan v. Rumsfeld, the Supreme Court clearly upheld the principles. It said, in essence, that the President could not make up the rules as he went along, but must consult with Congress - the people's branchin the war on terror. As Justice Breyer wrote, "Congress has not issued the executive a blank check."
Four years ago, this administration bypassed these basic principles when it created kangaroo courts to try detainees at Guantanamo. The tribunals and commissions at Guantanamo are fundamentally unfair and do not give detainees a reasonable opportunity to have the validity of their detention decided. They were denied the ability to confront their accusers, to know the evidence against them, or even to be present at their trials. The trials did not guarantee the basic procedural protections needed to provide a fair trial or achieve an accurate verdict.
The Administration promised swift justice, but it locked detainees away for over four years without creating an adequate process to distinguish between who belongs in detention and who should be released. Over four hundred fifty detainees have been held year after year under inhumane conditions. Despite establishing these military commissions over four years ago, they have not held a single trial or obtained a single conviction.
As we learned last week, the military commissions created by the Administration were created in secret, by a very small group of lawyers in the Justice Department and in the Vice President's office. There was little consultation with the experts in this area of the law. The Defense Department's General Counsel William Haynes gave the military Judge Advocate General a cursory look at the proposed process before completely ignoring their objections.
As we go forward, we should heed the words of Justice Kennedy, who said in the Hamdan case, "The Constitution is best preserved by standards tested over time and insulated from the pressures of the moment." We should take Justice Kennedy's wise words to heart, and be deliberative in how we proceed. We must ensure that the process for developing the rules and regulations for the military commissions is open and the outcome is fair.
We already have a system that is consistent with our laws and ideals: the Uniform Code of Military Justice. It was designed to operate in wartime, and has done so effectively. It can deal with classified information, protect the identities of government informants, and handle information gathered in intelligence interrogations. It even has provisions for classified proceedings.
We need to stand up for our well-established legal traditions and values. We need to ensure that the procedural rules are developed through the regular process, both here in Congress, and within the executive branch. We have wasted enough time on untested legal theories and legal appeals. This time the system must be beyond reproach. The Constitution and our national security are served badly by anything less."