Federal Courts Capable Of Hearing Terrorism Trials

[WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) spoke on the Senate floor Thursday in opposition to an amendment to the Commerce-Justice-Science appropriations bill that would prohibit the use of funds to prosecute in federal courts the detainees held in connection to the terrorist attacks of September 11.  Leahy has long opposed restricting the Justice Department’s ability to prosecute terrorists and detainees in federal courts.]

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Graham Amendment
November 5, 2009

As Prepared

The amendment sponsored by Senator Graham, Senator McCain, Senator Lieberman and Senator Webb plays partisan politics with our national security.  This amendment would prohibit the prosecution of any individual suspected of involvement with the September 11 attacks on the United States from being tried in our Article III courts. 

The real intent of this amendment is clear, to ensure that the detainees being held at Guantanamo Bay, some for years without charge, can only be tried by military commissions. As a former prosecutor, I find it deeply troubling that the Senate would be asked to prohibit the administration from trying even dangerous terrorists in our Federal courts.  These Senators should not use an amendment that politicizes decisions about significant prosecutions as a backdoor to require the use of military commissions. The administration has worked hard to revise the military commissions to make sure they meet the constitutional standards.  However, their use has been plagued with problems and repeatedly overturned by the Supreme Court.  In contrast, our Federal courts have a long and distinguished history of successfully prosecuting even the most atrocious violent acts, and they are respected throughout the world.

The administration strongly opposes this amendment.  In a letter to the Senate leadership, the Secretary of Defense and the Attorney General of the United States warn that this amendment would “set a dangerous precedent” by directing the Executive Branch’s prosecutorial determination.  They also point out that this amendment would prohibit them from being able to “use every lawful instrument of national power… to ensure that terrorists are brought to justice and can no longer threaten American lives.”  Two of the most senior administration officials, who are directly responsible for the disposition of these detainees, are telling us not to tie their hands in the fight against terrorism.  We should listen to them.

An outpouring of opposition against this amendment has been voiced over the past few days by numerous human rights groups, including Amnesty International, Human Rights First, the National Institute of Military Justice, the Constitution Project and others.  We have also seen a strong public declaration supporting trying terrorism offenses in Federal court that was signed by a bipartisan group of prominent former members of Congress, high-ranking military officials and judges.

The Judiciary Committee has held several hearings on the issue of how to best handle detainees, and experts and judges from across the political spectrum have agreed that our courts and our criminal justice system can handle this challenge, and indeed has handled it many times already.  Republican luminaries like General Colin Powell have agreed with this idea.  In fact, since January of this year alone, over 30 terrorism suspects have been successfully prosecuted or sentenced in federal courts, including individuals directly implicated by this amendment, such as Zacarias Moussaoui.  If this amendment were law, Moussaoui, the so called “20th hijacker” who was directly involved in the planning of the September 11, would not have been convicted and sentenced to life in prison.  This amendment takes away one of the greatest tools we have to protect our national security -- the ability to prosecute suspects in Federal courts.  Instead, as the Justice Department has said in its opposition to it, the Graham amendment would make it more likely that terrorists will escape justice.

I believe strongly, as all Americans do, that we must take every step we can to prevent terrorism, and we must ensure severe punishments for those who do us harm.  As a former prosecutor, I have made certain that perpetrators of violent crimes receive serious punishment.  I also believe strongly that we can ensure our safety and security, and bring terrorists to justice, in ways that are consistent with our laws and values. 

The administration has said that where possible they will try individuals in Federal courts.  When we unnecessarily preempt that option, we are saying that we do not trust the legal system on which we have for so long.  All that does is give more ammunition to our enemies and further hurt our standing around the world which has already suffered so much from the stain of Guantanamo Bay.  Worse still, it sends the message to other countries that they do not have to use traditional legal regimes with established protections for defendants to prosecute American soldiers or civilians.

Just as partisan Republicans were wrong to try to hold up the confirmation of Attorney General Holder to extort a pledge from him that he would not exercise independent prosecutorial judgment, it is also wrong to force an amendment politicizing prosecutions into the Commerce-Justice-Science appropriations bill.  I opposed the effort by some Republican Senators who wanted the Nation's chief prosecutor to agree in advance that he would turn a blind eye to possible lawbreaking before investigating whether it occurred.  Republican Senators asked for such a pledge, a commitment that no prosecutor should give.  To his credit, Eric Holder did not. 

Passing a far-reaching amendment that takes away a powerful tool from the Justice Department in bringing terrorists to justice and usurps the Attorney General’s constitutional responsibilities is not the path forward.  The administration should decide who to prosecute and where they should be prosecuted.  This amendment denies us the benefit of using not only our Federal courts, with their successful track record convicting terrorists, but also from using our Federal laws, which are arguably more expansive and better suited for use in terrorism cases than the narrower set of charges that can be brought in a military commission. We should not tie the hands of our law enforcement in their efforts to secure our national security. Any former prosecutor, any lawyer and any citizen should know that it is not the decision of or an appropriate role for the United States Senate.     

It is time to act on our principles and our constitutional system.  Those who we believe to be guilty of heinous crimes should be tried and punished severely.  Where the administration decides to try them in Federal courts, our courts and our prisons are more than up to the task.  I agree with the Justice Department that this amendment “would ensure that the only individuals in the world who could not be prosecuted under the criminal terrorist offenses Congress has enacted would be those who are responsible for the most devastating terrorist acts in U.S. history.” Let us put aside heated and distorted rhetoric and support the President in his efforts to truly make our country safe and strong and a republic worthy of the history and values that have always made America great.      

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