Congressional Record: February 13, 2002 (Senate)
Page S733-S745                      


      By Mr. SPECTER (for himself and Mr. Durbin):
  S. 1937. A bill to set forth certain requirements for trials and 
sentencing by military commissions, and for other purposes; to the 
Committee on Armed Services.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce, 
on behalf of Senator Durbin and myself, legislation entitled the 
"Military Commission Procedures Act of 2002."
  The President issued an order establishing generalized procedures for 
trying members of al-Qaida and the Taliban. It is my view and Senator 
Durbin's view that Congress ought to consider what are the appropriate 
procedures pursuant to our authority under the Constitution, article I, 
section 8, which gives to the Congress the responsibility and authority 
"To define and punish . . . Offenses against the Law of Nations."
  We have already legislated in part, delegating to the President the 
authority to establish military tribunals "by regulations which shall, 
so far as he considers practicable, apply the principles of law and the 
rules of evidence generally recognized in the trial of criminal cases 
in the United States district courts, but which may not be contrary to 
or inconsistent with this chapter."
  The President promulgated his order without consultation with 
Congress. This legislation is a starting point for what we believe 
ought to be consideration by the Judiciary Committee.
  In the President's order, there was a provision that there could be 
no appeal from any order of the military tribunal. But that, on its 
face, was inconsistent with the Constitution, which preserves the right 
of habeas corpus unless there is rebellion or invasion, neither of 
which had occurred here.
  The President's order also allowed for conviction of a capital 
offense by a two-thirds vote, but that is inconsistent with the Uniform 
Code of Military Justice, and the law does not allow a regulation to be 
inconsistent with that law.
  So Senator Durbin and I have provided the modifications that two-
thirds is acceptable generally. But if the sentence carries 10 years or 
more, it requires a three-fourths vote. And for the death penalty, it 
would require a unanimous vote.
  This legislation further provides for right to counsel consistent 
with the Uniform Code of Military Justice, which would be either 
military counsel or could be private counsel. But that right is 
  On one provision, we have provided that there would be no "Miranda" 
rights for suspects who are interrogated. I candidly concede that in 
abrogating "Miranda" rights, that will be a source of some 
contention, which can be the subject of hearings. But it is our view 
that we should not give al-Qaida or Taliban prisoners access to counsel 
before they are questioned, first, for the safety of the soldiers who 
are doing the questioning, and, second, because of the importance, 
potentially, that eliciting information would stop further terrorist 
  Of course, we could provide no "Miranda" warnings in advance but 
not allow admissions to be used at trial, but it is our view, subject 
to hearings and further consideration, that "Miranda" rights ought 
not to be required.
  We have provided for an open trial unless there is classified 
information; and, if classified information is used, we have 
incorporated the provisions of the Anti-Terrorism Act of 1996--a 
compromise worked out by Senator Simon and myself on the floor--which 
provides for a summary to be given to the defendant and the commission, 
to be reviewed by the commission, to see if it is adequate to protect 
sources and methods of classified information and also adequate to 
inform the defendant of the evidence so that the defendant would have 
substantially the same ability to make his defense as he would if the 
classified information was disclosed.

[[Page S734]]

  We have not provided any restrictions on rules of evidence, since it 
is the custom of Congress not to do so. But we think this legislation 
is an important first step. We now know there is a large contingent of 
those captive in Guantanamo Bay.
  I believe the President made a sound decision in saying that al-Qaida 
members were not prisoners of war, not subject to the Geneva Convention 
because they are terrorists, murdering innocent civilians. The 
President did accord Taliban members the protections of the Geneva 
  But these trials will soon start. It is very important that our 
country and our Government proceed with accepted norms for criminal 
trials. To have a death penalty imposed on a two-thirds vote, as is in 
the Presidential order, would not be consistent with our generalized 
standards. To provide for no appeal is not consistent with the 
constitutional provisions.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. SPECTER. I ask unanimous consent for 30 seconds to finish my 
sentence, Mr. President.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. SPECTER. We believe this is a starting point. We urge early 
hearings so we can establish the parameters, so when we deal with these 
treacherous terrorists, we will, in accordance with American standards, 
give them basic due process--no more, but basic due process.
  Mr. DURBIN. Mr. President, on November 13, 2001, President Bush 
issued a military order authorizing the use of military commissions to 
prosecute individuals who may be engaged in activities related to the 
subject of our campaign against terrorism.
  The initial public reaction to the White House action was one of 
surprise and skepticism: Surprise that the order was issued without any 
advance notice, and skepticism as to whether the decision is based on 
sound legal or policy grounds. Many commentators also raised legitimate 
concerns that the Administration's use of military tribunals could 
potentially undermine our long-held foreign policy of criticizing other 
nations' reliance on such tribunals.
  My reaction, which, I believe, was echoed by many of my colleagues in 
Congress, was one of disappointment, in addition to the surprise and 
skepticism. I was disappointed that Congress was excluded from 
deliberating a policy as important as this one before the White House 
announced the order.
  I have said repeatedly since September 11 that I fully support the 
President in his efforts to combat terrorism both here and abroad. In 
response to September 11, Congress worked hand in hand with the 
administration on a host of items in a truly cooperative and bipartisan 
manner, from the passage of a joint resolution authorizing the 
President to use all necessary force, to the passage of the sweeping 
anti-terrorism bill.
  Yet on the drafting of this military order, Congress was left 
completely in the dark. The Constitution provides executive powers to 
the President, not exclusive powers. Our Nation remains strong only if 
the co-equal branches of government work together.
  Any proceeding that takes place under President Bush's order will 
have to withstand the test of legal scrutiny for years to come. But 
more importantly, it will also have to pass the scrutiny of our 
citizens at home and of our friends and enemies abroad who are watching 
to see how the greatest democracy in history carries out justice.
  At the Judiciary Committee hearing held in early December, Senator 
Specter and I both questioned the administration's witness to ascertain 
the precise constitutional authority upon which the administration was 
relying in creating this tribunal. We did not receive a satisfactory 
  We also wanted to know the precise scope and reach of the order in 
terms of who will be brought before such a tribunal, what procedural 
and evidentiary standards are to be applied, and what due process 
safeguards, including appeals, will be in place. We did not receive 
many details here either.
  Instead, the administration asked us to wait for the regulations 
implementing the order that the Defense Department was preparing.
  It has been over 3 months since the President's order was issued, and 
we have not seen the Defense Department regulations. So I believe it is 
appropriate for Congress to act now to provide the constitutional 
authority and guidance on procedures before the first military 
commission is empaneled under the President's order.
  I am introducing the "Military Commission Procedures Act of 2002" 
with Senator Specter. I believe this bill will provide the executive 
branch with the legal authority to prosecute potential terrorists 
captured in the current military campaign abroad.
  Our bill is designed to ensure that military commissions are used in 
the most narrow and necessary circumstances while protecting the basic 
rights of defendants. The bill limits the jurisdiction of military 
commissions to try defendants only for violations of the law of war, 
and not any domestic laws.
  The defendants would be entitled to representation by counsel in the 
same manner as military service members under the Uniform Code of 
Military Justice. The prosecution would need to prove its case beyond a 
reasonable doubt, and the death penalty could not be imposed without a 
unanimous vote as to guilt and to the sentence.
  Furthermore, in order to keep the proceedings as open as possible, 
our bill provides for classified information procedures where the 
defendant would receive a summary of such evidence while the commission 
considers the actual evidence in camera and ex parte. The bill also 
authorizes convicted defendants to petition the U.S. Supreme Court for 
  In short, Senator Specter and I believe this bill includes the 
details that the President's military order of November 13 should have 
included. More importantly, the bill provides the full force of the 
congressional and constitutional support behind the President's 
continuing efforts to wage a war against terrorism.
  I urge my colleagues to join us in supporting this legislation.