In June, the Supreme Court ruled in Hamdan v. Rumsfeld that President Bush exceeded his authority by establishing military commissions to try detainees in the Global War on Terrorism without explicit Congressional approval.  That decision presented Congress with an important opportunity to develop a proposal to try some of the world’s most dangerous people and to provide swift justice to those who engaged in horrendous acts against our nation.  Unfortunately, instead of proceeding in a bipartisan manner to craft legislation that enjoys the full confidence of this body, Congress is faced with a proposal negotiated exclusively by Republicans and whose actual effectiveness in prosecuting terrorists remains in question.

After the Hamdan decision, the House Armed Services Committee held numerous hearings on how Congress should respond, and I commend the Chairman for his efforts to ensure that committee members learned the complexities of this topic.  One constant theme we heard from the witnesses testifying was that Congress should ensure that any system established to try military detainees followed existing legal procedures to the greatest extent practicable.  On that point, let us be clear.  Despite the mischaracterizations of some Members on the floor today, no one has recommended giving terrorists the same rights as criminals or members of our armed forces.  Everyone recognizes that many of these detainees are dangerous people, and we agree that the judicial system used to try them must reflect the complexities of prosecuting enemy combatants in the midst of an ongoing war.  What the legal experts did counsel, though, was that if military commissions did not include basic, broadly accepted principles of jurisprudence, the commissions could be subject to legal challenge.  Unfortunately, we have no idea if the legislation before us will withstand such scrutiny because the commissions it would establish vary significantly from other accepted forms of tribunals that have been used to prosecute crimes in times of war.  I hope that this legislation does ultimately pass constitutional muster, because it would be a devastating blow to our efforts to combat global terrorism if the conviction of a terrorist were overturned on a legal challenge.  However, because I am not confident that the legislation will be upheld, I must oppose it.

The other overarching concern I have with this measure is the impact it will have on the United States’ obligations under the Geneva Conventions.  The legislation would give the President broad authority to interpret U.S. compliance with the Geneva Conventions and would create confusion about which practices would be prohibited.  The Supreme Court specifically stated in Hamdan that basic protections of the Geneva Conventions’ Common Article 3 apply to detainees, but the legislation actually complicates compliance with Common Article 3 by creating new definitions of offenses that do not comport with international law.  Unfortunately, this change could endanger our own men and women in uniform by encouraging other nations to redefine how they treat captured prisoners.  We would not want other nations to offer anything other than full Geneva protections to our own troops, and we must therefore respect the concept of reciprocity on which the Conventions were established.  As Colin Powell noted, respecting the Geneva Conventions not only protects our own servicemembers, but it affirms our commitment to international standards of law and justice at a time when our moral authority in the Global War on Terrorism is increasingly being questioned. 

I am deeply disappointed that, on a matter of such importance to the American people, Congress did not act in a careful and bipartisan fashion to establish a system of military commissions that can protect the American people and withstand legal scrutiny.  Instead, the leadership is forcing this measure through the House while ignoring some very valid concerns.  I simply ask where their sense of urgency was nearly five years ago when the President established military tribunals without Congressional input.  Some of my Democratic colleagues have argued for years that we need greater Congressional involvement in the justice system for military detainees, but those appeals were ignored.  Once again, Congress has abdicated its Constitutional oversight responsibility for too long and, when finally forced to act, has chosen partisanship over sound policy.  I urge my colleagues to oppose this measure so that we can craft an alternative that is tough on terrorists while meeting our legal and international obligations.

Thank you, Mr. Speaker.